task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44k
|
|---|---|---|
songer_circuit
|
C
|
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, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be 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:
|
sc_respondent
|
019
|
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.
JOSEPH E. SEAGRAM & SONS, INC., et al. v. HOSTETTER, CHAIRMAN, NEW YORK STATE LIQUOR AUTHORITY, et al.
No. 545.
Argued February 23, 1966.
Decided April 19, 1966.
Thomas F. Daly and Jack Goodman argued the cause for appellants. With them on the briefs was Herbert Brownell.
Ruth Kessler Toch, Acting Solicitor General of New York, argued the cause for appellees. With her on the brief were Louis J. Lejkowitz, Attorney General, and Robert L. Harrison, Assistant Attorney General.
Fred M. Switzer, Abraham Tunick and Fred M. Switzer III filed a brief for Wine & Spirits Wholesalers of America, Inc., as amicus curiae, urging reversal.
Mr. Justice Stewart
delivered the opinion of the Court.
This appeal draws in question certain provisions of Chapter 531, 1964 Session Laws of New York, which worked substantial changes in the State’s Alcoholic Beverage Control Law. The appellants are distillers, wholesalers, or importers of distilled spirits, who commenced this action in a New York court for an injunction and declaratory judgment against the appropriate state officials, upon the ground that § 9 of Chapter 531 violates the Federal Constitution in several respects. The trial court upheld the constitutionality of the law, and its judgment was affirmed by the Appellate Division and by the New York Court of Appeals. The appellants brought the case here, and we now affirm the judgment of the Court of Appeals.
Chapter 531 was enacted as the result of a sweeping redirection of New York's policy regulating the sale of liquor in the State. For more than 20 years the Alcoholic Beverage Control Law (hereinafter ABC Law) had required brand owners of alcoholic beverages or their agents to file with the State Liquor Authority monthly schedules listing the bottle and case price to be charged to wholesalers and retailers within the State. These schedules were publicly displayed, and sales were prohibited except at the listed prices. In 1950 the ABC Law was amended by the addition of a section which required brand owners or their agents to file price schedules listing the minimum retail price at which each brand could be sold to consumers and which prohibited retail sales at prices less than those fixed in the schedules. The enforcement of these mandatory minimum retail prices was entrusted to the State Liquor Authority rather than to private action, but the Authority was given no power to determine the reasonableness of the prices that were fixed.
In 1963, against a background of irregularities within the State Liquor Authority and extensive dissatisfaction with the operation of the ABC Law, the Governor of New York appointed a Commission to study the sale and distribution of alcoholic beverages within the State. The Commission sponsored various study papers and issued a series of reports and recommendations. It found unequivocally that compulsory resale price maintenance had had “no significant effect upon the consumption of alcoholic beverages, upon temperance or upon the incidence of social problems related to alcohol.” It also found that New York liquor consumers had been the victims of serious discrimination because of the higher prices and reduced competition fostered by the mandatory minimum price maintenance provision of the law. The Commission therefore recommended the repeal of that provision, and the ultimate response of the legislature was the enactment of Chapter 531.
The legislature did not stop, however, with repeal of the mandatory resale price maintenance provision of the law. In § 9 of Chapter 531 it imposed the additional requirement that the monthly price schedules for sales to wholesalers and retailers filed with the State Liquor Authority must be accompanied by an affirmation that “the bottle and case price of liquor ... is no higher than the lowest price” at which sales were made anywhere in the United States during the preceding month. It is this provision that is the principal object of the appellants’ constitutional attack in this litigation.
Section 9 effects the “no higher than the lowest price” requirement by the addition of paragraphs (d)-(k) to § ioi-b-3 of the ABC Law. The affirmation required by paragraph (d), which must be filed and verified by brand owners or their agents who sell to wholesalers in New York, must cover all sales to wholesalers anywhere in the United States by the brand owner, his agent, or any “related person.” The less extensive affirmation required by paragraph (e), which applies to persons other than brand owners or their agents who file schedules for sales to wholesalers, need only cover sales elsewhere by the person filing the schedule. The affirmation required by paragraph (f), which must be filed by brand owners, their agents, or “related persons” who sell to retailers in New York, must be verified by the brand owner or his agent and must cover all sales to retailers anywhere in the United States by the brand owner, his agent, or any “related person.” The less extensive affirmation required by paragraph (g), which applies to wholesalers who are not “related persons,” need only cover sales elsewhere by the person filing the schedule.
The term “related person” is defined in paragraphs (d) and (f) to include any person, the “exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from” the brand owner or his agent. In consequence, before a “related person” wholesaler may sell a particular brand of liquor to a New York retailer, he must secure an affirmation from the brand owner or his agent that the price charged by the wholesaler is no higher than the lowest price at which the brand was sold to any retailer in any other part of the country by any wholesaler doing “substantial” business with the brand owner. Thus, a brand owner doing business in New York must keep himself informed of the prices charged by all “related persons” throughout the United States.
The scheme of § 9 of Chapter 531 is rounded out by the addition to § 101-b-3 of the ABC Law of paragraph (h), which prohibits sales to wholesalers and retailers of brands for which no affirmation has been filed; paragraph (i), which requires the “lowest price” to reflect all discounts and other allowances to wholesalers and retailers, with the exception of state taxes and delivery costs; and paragraphs (j) and (k), which impose criminal penalties for the filing of a false affirmation.
As a result of a series of stays granted throughout this litigation, the provisions of § 9 have not yet been put into effect. Our concern here, therefore, is only with the constitutionality of those provisions on their face. The appellants attack § 9 on many constitutional fronts. They contend that its provisions place an illegal burden upon interstate commerce, conflict with federal antitrust legislation and thus fall under the Supremacy Clause, and violate both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. We find all these contentions without merit.
Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” As this Court has consistently held, “That Amendment bestowed upon the states broad regulatory power over the liquor traffic within their territories.” United States v. Frankfort Distilleries, 324 U. S. 293, 299. Cf. Nippert v. Richmond, 327 U. S. 416, 425, n. 15. Just two Terms ago we took occasion to reiterate that “a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.” Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 330. See State Board of Equalization v. Young’s Market Co., 299 U. S. 59; Mahoney v. Joseph Triner Corp., 304 U. S. 401; Ziffrin, Inc. v. Reeves, 308 U. S. 132; California v. Washington, 358 U. S. 64. Cf. Indianapolis Brewing Co. v. Liquor Comm’n, 305 U. S. 391; Joseph S. Finch & Co. v. McKittrick, 305 U. S. 395. As the Idlewild case made clear, however, the second section of the Twenty-first Amendment has not operated totally to repeal the Commerce Clause in the area of the regulation of traffic in liquor. In Idlewild the ultimate delivery and use of the liquor was in a foreign country, and the Court held that under those circumstances New York could not forbid sales made under the explicit supervision of the United States Customs Bureau, pursuant to laws enacted by Congress under the Commerce Clause for the regulation of commerce with foreign nations. Cf. Dept. of Alcoholic Beverage Control v. Ammex Warehouse Co., 378 U. S. 124; Collins v. Yosemite Park Co., 304 U. S. 518.
Unlike Idlewild, the present case concerns liquor destined for use, distribution, or consumption in the State of New York. In that situation, the Twenty-first Amendment demands wide latitude for regulation by the State. We need not now decide whether the mode of liquor regulation chosen by a State in such circumstances could ever constitute so grave an interference with a company’s operations elsewhere as to make the regulation invalid under the Commerce Clause. See Baldwin v. G. A. F. Seelig, 294 U. S. 511. No such situation is presented in this case. The mere fact that § 9 is geared to appellants’ pricing policies in other States is not sufficient to invalidate the statute. As part of its regulatory scheme for the sale of liquor, New York may constitutionally insist that liquor prices to domestic wholesalers and retailers be as low as prices offered elsewhere in the country. The serious discriminatory effects of § 9 alleged by appellants on their business outside New York are largely matters of conjecture. It is by no means clear, for instance, that § 9 must inevitably produce higher prices in other States, as claimed by appellants, rather than the lower prices sought for New York. It will be time enough to assess the alleged extraterritorial effects of § 9 when a case arises that clearly presents them. “The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids.” Osborn v. Ozlin, 310 U. S. 53, 62. Cf. Hoopeston Canning Co. v. Cullen, 318 U. S. 313; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 189; Baldwin v. G. A. F. Seelig, 294 U. S. 511, 528.
Moreover, as the Court of Appeals observed, the regulatory procedure followed by New York is comparable to that practiced by those States, 17 in number, in which liquor is sold by the State itself and not by private enterprise. Each of these monopoly States, we are told, requires distillers to warrant that the price charged the State is no higher than the price charged in other States. In at least one of these States, the distillers are required to adjust the sales price to include all rebates and other allowances made to purchasers elsewhere, and the State has taken positive precautions to insure that the contractual commitments are fulfilled. In some respects, the burden of gathering information for the warranties made to the monopoly States may be more onerous than that required for the affirmations under § 9, since the warranties generally cover prices in other States at the very time of sale to the monopoly State, whereas the affirmations filed under § 9 cover prices charged elsewhere during the preceding month.
We therefore conclude that the provisions of § 9 on their face place no unconstitutional burden on interstate commerce.
The appellants’ contention that § 9 violates the command of the Supremacy Clause needs no extended discussion. The argument is based upon a claimed inconsistency between § 9 and the federal antitrust laws, specifically the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1-7 (1964 ed.), and § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U. S. C. § 13 (1964 ed.).
In this as in other areas of coincident federal and state regulation, the “teaching of this Court’s decisions . . . enjoin [s] seeking out conflicts between state and federal regulation where none clearly exists.” Huron Cement Co. v. Detroit, 362 U. S. 440, 446. We find no such clear conflict in the present case. The bare compilation, without more, of price information on sales to wholesalers and retailers to support the affirmations filed with the State Liquor Authority would not of itself violate the Sherman Act. Maple Flooring Assn. v. United States, 268 U. S. 563, 582-586; cf. American Column Co. v. United States, 257 U. S. 377. Section 9 imposes no irresistible economic pressure on the appellants to violate the Sherman Act in order to comply with the requirements of § 9. On the contrary, § 9 appears firmly anchored to the assumption that the Sherman Act will deter any attempts by the appellants to preserve their New York price level by conspiring to raise the prices at which liquor is sold elsewhere in the country. Nothing in the Twenty-first Amendment, of course, would prevent enforcement of the Sherman Act against such a conspiracy. United States v. Frankfort Distilleries, 324 U. S. 293, 299.
Although it is possible to envision circumstances under which price discriminations proscribed by the Robinson-Patman Act might be compelled by § 9, the existence of such potential conflicts is entirely too speculative in the present posture of this ease to support the conclusion that New York is foreclosed from regulating liquor prices in the manner it has chosen. Moreover, § 7 of Chapter 531 has amended the ABC Law by granting to the State Liquor Authority ample discretion to modify the schedule requirements. We cannot presume that the Authority will not exercise that discretion to alleviate any friction that might result should the ABC Law chafe against the Robinson-Patman Act or any other federal statute.
There remain for consideration the appellants’ Fourteenth Amendment claims. Section 9, they say, violates the Due Process Clause in two respects, first because it imposes an “unreasonable, arbitrary, and capricious” burden upon them, and second because the statutory definition of “related person” is so vague as to be constitutionally intolerable. And § 9 violates the Equal Protection Clause, they say, because it arbitrarily discriminates among various segments of the liquor industry.
The first contention amounts to a claim of a deprivation of due process of law, based on the argument that § 9 is not designed to promote temperance and that it is an unwise, impractical, and oppressive law. But it is not “the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. . . . The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely . . . has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. . . .” Ferguson v. Skrupa, 372 U. S. 726, 728-730.
Moreover, nothing in the Twenty-first Amendment or any other part of the Constitution requires that state laws regulating the liquor business be motivated exclusively by a desire to promote temperance. The announced purpose of the legislature was to eliminate “discrimination against and disadvantage of consumers” in the State. Frustrated by years of unhappy experience with a state-enforced mandatory resale price maintenance system that placed exclusive price-fixing power in the hands of the distillers, the legislature adopted § 9 as the core of the liquor price reform contemplated by Chapter 531. We cannot say that the legislature acted unconstitutionally when it determined that only by imposing the relatively drastic “no higher than the lowest price” requirement of § 9 could the grip of the liquor distillers on New York liquor prices be loosened. In a variety of cases in areas no more sensitive than that of liquor control, this Court has upheld state maximum price legislation. See Nebbia v. New York, 291 U. S. 502; Townsend v. Yeomans, 301 U. S. 441; O’Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251; Gold v. DiCarlo, 380 U. S. 520.
The statutory definition of “related person,” which the appellants attack as unconstitutionally vague, includes any person “the exclusive, principal or substantial business of which is the sale of a brand or brands of liquor purchased from such brand owner or wholesaler designated as agent . . . .” The claim of vagueness is centered upon the term “principal or substantial.” We cannot agree that that language is so vague as to be constitutionally invalid. The Deputy Commissioner of the State Liquor Authority testified in these proceedings that where the determination of “related persons” is unclear, the appellants will have access to the Authority for a ruling to clarify the issue. As the Court said in Board of Governors v. Agnew, 329 U. S. 441, 449, “. . . we think it plain under our decisions that if substantiality is the statutory guide, the limits of administrative action are sufficiently definite or ascertainable so as to survive challenge on the grounds of unconstitutionality.” Cf. Opp Cotton Mills v. Administrator, 312 U. S. 126, 142-146; Bowles v. Willingham, 321 U. S. 503, 512-516.
Further, as the record indicates, the structure of the liquor industry is such that even the largest national distillers deal through a relatively limited number of wholesalers. Frequently, a wholesaler agrees with a distiller not to sell brands of competing distillers in the same price range, and the prices charged by these wholesalers are potentially subject to the influence of the distillers. We cannot say, therefore, that § 9 on its face imposes an unconstitutional burden on distillers or wholesalers in ascertaining the wholesalers who satisfy the “related person” criterion or in obtaining information on prices charged by such wholesalers.
We come, then, to the appellants’ argument that § 9 violates the Equal Protection Clause. That argument is based upon the claim that it was arbitrary for the legislature to except consumer sales and private label brands of liquor from the “no higher than the lowest price” requirement of § 9, and to reduce the scope of the price affirmation required with respect to sales made to wholesalers and retailers by those who are not “related persons.”
We do not find that these differentiations constitute invidious discrimination. The legislature could reasonably have believed that, once the prices on sales by distillers and “related persons” were reduced, the prices of private label brands and brands sold by non-“related persons” would follow suit. Nor was it necessary for the legislature to impose the “no higher than the lowest price” requirement on sales by retailers to consumers. The legislature might reasonably have concluded that consumer prices would adequately reflect the reductions in prices to wholesalers and retailers accomplished by § 9, even though the state fair trade statute, which permits private resale price maintenance agreements on sales to consumers, appears to have emerged unscathed by the enactment of Chapter 531. “A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed
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_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Robert ADAMSON et al., Appellants, v. CANADA STEAMSHIP LINES, Limited, Appellee. Harold H. TIMANUS, Administrator of the Estates of James K. Timanus, Deceased, and Dorothy Coleman Timanus, Deceased, Appellants, v. CANADA STEAMSHIP LINES, LIMITED, Appellee.
Nos. 11217, 11294.
United States Court of Appeals Sixth Circuit.
Dec. 14, 1950.
Kenneth C. Davies, Detroit Mich., W. Alexander Eldridge, Cleveland, Ohio, Elmer II. Groefsema, Detroit, Mich., Victor M. Todia and J. Harold Traverse, Cleveland, Ohio, for Adamson and others.
Leckie, McCreary, Schlitz & Hinslea, Lucian Y. Ray, Cleveland, Ohio, for appellee.
Guernsey & Guernsey, Fostoria, Ohio, for Timanus and others.
Before HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
PER CURIAM.
The above causes coming on to be heard upon the transcript of the record, the briefs of the parties, and the arguments of counsel, and the court being duly advised.
Now, therefore, it is ordered, adjudged, and decreed that the orders of the District Court overruling the exceptions to the jurisdiction of the District Court, from which the above appeals were taken, be and are hereby affirmed, in accordance with the opinion of the District Court.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Johnny Edwin HARE, Defendant-Appellant.
No. 78-5559
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 7, 1979.
J. Louis Wilkinson, Birmingham, Ala., for defendant-appellant.
J. R. Brooks, U. S. Atty., Michael V. Rasmussen, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Hare was convicted on counts One through Four charging possession with intent to distribute various drugs, and Count Five, possession of a firearm after being convicted of a felony.
The defense did not move before trial to suppress the drugs and the guns as required by F.R.Crim.P. 12(b) and first raised it by objection at trial. Under Rule 12(f) this waived the point, but even if the issue of warrantless search had been properly raised it was without merit. Officers were not required to secure a warrant to search an open, unfenced, unposted densely wooded area, near a highway and not part of the curtilage of any dwelling. E. g., U. S. v. Williams, 581 F.2d 451, 453-54 (C.A.5, 1978).
There was no error in refusing to divulge the identity of an informer. Hare contended that he was entitled to know the informer’s identity on the theory that he did not know the contents of the bag hidden in the woods and containing the drugs and the guns and was merely investigating the sack to see what it contained. The informer’s tip had represented that the informer was present when Hare and his brother placed the bag in the woods and had said or implied that persons other than the Hare brothers may have been present. The bag was partially covered by rocks and vegetation. The area was so densely wooded that it was difficult to reach the location of the sack, and Hare had to crawl to get to it. Hare placed his hand into the sack but when he was flushed had not removed anything; he removed his hand and officers took possession of the sack and closed it. Shortly thereafter Hare voluntarily told his father, in the presence of the officers, that he had been “caught in a trap.” Later, at police headquarters, the officers dumped out the sack. In the bottom, underneath the drugs, were two guns. Soon thereafter Hare was overheard making a telephone call in which he told the person at the other end of the line to call his [Hare’s] lawyer and “tell him they’ve got both guns.” Hare’s theory is that, if revealed, the informer might testify that Hare, though physically present when the sack was brought into the woods and put in its location, did not know what was in the sack. Under the balancing test of Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956), this possibility (if it can be called possibility at all) is simply too attenuated to be considered a necessary part of Hare’s defense.
The contention of multiplicity in counts One through Four is raised for the first time on appeal. In any event, we do not reach it since the sentences on counts Two, Three and Four are concurrent with the sentence on count One.
AFFIRMED.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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).
UNITED STATES of America, Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent. GIFFORD-HILL-AMERICAN, INC., Petitioner, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent. UNITED CONCRETE PIPE CORPORATION and Lloyd R. Earl, Petitioners, v. Honorable Sarah T. HUGHES, United States District Judge for the Northern District of Texas, Respondent.
Nos. 24101, 24120 and 24121.
United States Court of Appeals Fifth Circuit.
June 2, 1969.
Thomas S. Howard, Atty., Dept, of Justice, Chicago, 111., Howard E. Shapiro, Ronald B. Lewis, Attys., Dept, of Justice, Washington, D. C., for the United States.
Irwin F. Woodland, Los Angeles, Cal., William P. Fonville, Dallas, Tex., for United Concrete and Lloyd R. Earl.
Stanley E. Neely, Dallas, Tex., Laugh-lin E. Waters, William L. Scott, Los An- ■ geles, Cal., for Gifford-Hill-American, Inc.
Gregory B. Hovendort, Atty., Dept, of Justice, Washington, D. C., for Sarah T. Hughes.
Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.
. The revised Rule 16 and the Advisory Committee’s Notes appear at 39 PRD 163, 173-178 and at 18 U.S.C.A. Rule 16 (Supp.1969). Parts of the Rule pertinent to this case are as follows:
(a) Defendant’s Statements; Reports of Examinations and Tests; Defendant’s Grand Jury Testimony. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph * * * (3) recorded testimony of the defendant before a grand jury.
(b) Other Boohs, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a) (2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the ease, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.O. § 3500.
(e) Protective Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the government the court may permit the government to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the government’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
GODBOLD, Circuit Judge:
These three petitions for writs of mandamus raise important questions concerning the construction of the discovery provisions of the recently revised Federal Rules of Criminal Procedure, Fed.R. Crim.P. 16. The cases were assigned for oral argument and supplemental briefing in an earlier opinion of this court. United States v. Honorable Sarah T. Hughes, 388 F.2d 236 (5th Cir. 1968).
All three cases arise out of a pending Sherman Act prosecution in the Northern District of Texas. An indictment was returned January 20, 1966, charging United Concrete Pipe Corporation, Gif-ford-Hill-American, Inc., and Lloyd R. Earl, formerly Chairman of the Board of United, with conspiracy to fix prices, to submit rigged non-competitive bids and to divide the Texas market for concrete pressure pipe. The defendants in that criminal prosecution are the petitioners in Nos. 24120 and 24121. The United States is the petitioner in No. 24101.
On July 21, 1966, and subsequently, the defendants filed pre-trial motions for discovery under Rule 16. Under Rule 16 (a) (3), which allows a defendant to discover his recorded testimony before a grand jury, they moved for the production of the testimony of all present and former officers and employees of the corporate defendants before the Dallas, Texas grand jury which returned the indictment and a Los Angeles grand jury which previously had investigated a similar alleged conspiracy involving some of the defendants in the Texas prosecution. The defendants also moved under 16(b), which allows a defendant discovery upon a showing of a materiality to the preparation of the defense and of reasonableness, for the production of all documents material to the preparation of the defense, including transcripts of the Dallas and Los Angeles grand juries.
In an order reported at 41 F.R.D. 538, the motions were granted in part and denied in part. Under 16(a) (3) District Judge Hughes allowed the corporate defendants to discover the testimony of officers and former officers before both grand juries. Under 16(b) she allowed the defendants to discover documents submitted by all witnesses to the Dallas grand jury and by two key witnesses to the Los Angeles grand jury. Both the prosecution and the defendants filed the instant petitions attacking the court’s rulings.
Following our initial opinion in this case, and pursuant to a suggestion therein, the defendants filed supplemental motions in the district court seeking discovery of the testimony of officers and employees on the basis of Fed.R.Crim.P. 6(e). The district court, on a finding of particularized need, granted the same discovery under Rule 6(e) which it previously had granted under its 16(a) (3) order, plus the testimony of two named employees of United. The court refused to grant discovery of the testimony of several additional employees on the ground that no particularized need existed.
Although the government insists that the district court’s original order is erroneous insofar as it rests on Rule 16 (a) (3), it does not attack the second order issued under Rule 6(e). Since the second order grants the same relief as the first (plus the testimony of two additional witnesses), the government’s mandamus petition, No. 24101, is effectually mooted. However, since the testimony of defendants’ employees granted under the Rule 6(e) order is that of less than all their employees, and since they claim to be entitled to the testimony of all employees as a matter of right under Rule 16(a) (3) and 16(b), their petitions remain viable.
The issues that now remain for decision are:
(I) Is mandamus an appropriate remedy in this case?
(II) Under Rule 16(a) (3), are the corporate defendants entitled to discovery of the testimony given before the Los Angeles and Dallas grand juries by their present and former officers and employees?
(III) Did the court properly refuse the defendants’ motions under Rule 16 (b) for the production of all documents in the government’s possession material to the preparation of the defense and for the disclosure of the grand jury transripts?
1. Propriety of mandamus
All parties join in urging that mandamus is an appropriate remedy. But if we lack judicial power parties may not confer it upon us by concurring in a request for action. Therefore, we undertake an independent evaluation of the propriety of mandamus in this case.
The jurisdictional predicate of the All Writs Act, 28 U.S.C.A. § 1651, traditionally has been that a writ “issue in aid of an exercise of the Court of Appeals’ appellate jurisdiction.” Will v. United States, 389 U.S. 90, 95 n. 4, 19 L.Ed.2d 305, 310 n. 4 (1967). The Court in Will illustrated differing views of this requirement’s application to interlocutory-orders in criminal cases with the following citation: “Compare In re United States, 348 F.2d 624 (C.A. 1st Cir. 1965), with United States v. Bondy, 171 F.2d 642 (C.A.2d Cir. 1948).” Id,. In Bondy the government sought mandamus to determine the propriety of a pre-trial order granting discovery to the defendants. The Second Circuit pointed out that because the government may not appeal in a criminal case, the order could not otherwise be reviewed by the court of appeals. It concluded that mandamus was not appropriate since “we have neither actual nor potential jurisdiction to review the order.” 171 F.2d at 644. The First Circuit took a broader view of “potential jurisdiction” in In re United States, supra. Because an order allowing a criminal defendant to take depositions of government witnesses could be tested prior to trial by a contempt proceeding or by dismissal of the indictment, Judge Al-drich stated, “we see no reason why the government should not be able to do directly what it could effectuate indirectly.” 348 F.2d at 625.
The present case fits within the views of both the First and Second Circuits of “potential jurisdiction.” Because of the present posture of the case the relief which we could grant on mandamus would operate in favor of the defendants. The defendants, the only parties claiming to be prejudiced by the 16(a) (3) and 16 (b) orders, could, if convicted, challenge those orders on appeal. By passing on the court’s orders at this juncture we would, in Judge Aldrich’s terms, be doing directly what we could do indirectly. Moreover, unlike Bondy, we would not be reviewing an interlocutory order which could not be otherwise reviewed in the court of appeals. Insofar as the jurisdictional prerequisites of 28 U.S.C.A. § 1651 are concerned, we conclude that the mandamus petition is properly before us.
Our finding of jurisdiction is only the beginning of the inquiry. As the Supreme Court emphasized in Will, even when mandamus is within a court’s jurisdiction it may be employed only in exceptional causes. See also Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041, 2043 (1947). We recognize, and reiterate, that extraordinary prerogative writs may not be used indiscriminately to review interlocutory orders, La Buy v. Howes Leather Co., supra, or to thwart the Congressional policy against piecemeal appeals, Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943), or to alleviate the hardship resulting from an unnecessary trial in a particular case, United States Alkali Export Ass’n, v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 89 L.Ed. 1554, 1560 (1945). Our reluctance to interfere with the progress of a trial is especially strong in criminal cases, where the Sixth Amendment guarantee of a speedy trial is present. See, e. g., Will, supra; Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).
Despite our appropriate reluctance to employ the mandamus remedy, we conclude that a cumulation of factors causes this case to be of the exceptional and extraordinary nature that justifies the use of the writ. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). The issues presented are basic, they concern the extent of a district court’s power under a newly adopted rule of procedure, and they have not been passed on by this court. See Securities and Exchange Commission v. Krentzman, 397 F.2d 55 (5th Cir. 1968). District courts within the circuit are in conflict over the questions raised in this case, see United States v. Venn, 41 F.R.D. 540 (S.D.Fla.1966); United States v. I. G. Balfour Co., Crim. No. 2407 (N.D.Ga.1967), and the exercise of our “expository and supervisory functions” will limit further disparity. LaBuy v. Howes Leather Co., supra; Atlass v. Miner, 265 F.2d 312, 313 (7th Cir. 1959), aff’d 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960). The trial of the present case and similar cases would be lengthy and expensive, causing a heavy burden on the litigants and a drain on judicial manpower. Finally, our sensitivity to the Sixth Amendment considerations is assuaged by the fact that, as noted above, the defendants in this case seek relief and are the only parties who could be benefited by review of these orders. Madison-Lewis, Inc. v. MacMahon, 299 F.2d 256 (2d Cir. 1962); compare Will, supra; In re United, States, supra.
In holding that mandamus is appropriate, we issue the same caveat as the Supreme Court did in Schlagenhauf. The appropriateness of the writ in this particular instance is not to be construed as making mandamus appropriate in subsequent cases in which the principles of Rule 16 discovery set forth in this opinion are applied. Part of the extraordinary nature of what is before us is the compelling need tc^settle,a..new.issue so that it can become only an ordinary issue.
2. Rule 16 Motions — Background
While authority construing the newly revised Rule 16 is as yet meager, two decades of debate over the expansion of criminal discovery, provides a guide to its interpretation. The revision was prompted in. large measure by “the expanding body of materials, judicial and otherwise, favoring disclosure in criminal cases analogous to the civil practice.” Dennis v. United States, 384 U.S. 855, 870-871, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973, 984 (1966). In light of the movement toward liberal criminal discovery as advocated by the commentators and successfully implemented in state courts, we approach problems of construing the Rule with the “realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice.” Dennis v. United States, supra.
Revised Rule 16 represents a significant change in emphasis. Under the prior practice non-disclosure was the norm, and the defendant had to bear the burden of justifying discovery. Cf. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, 1327 (1959). The revised Rule operates on the premise that “abuses [of discovery] are a matter of legitimate concern — they argue however not for wholesale prohibition of criminal discovery but for circumspection and for appropriate sanctions tailored to dealing with apprehended abuses in the particular case.” Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth? 1963 Wash.U.L.Q. 279, 292. Under the revised Rule when the defendant properly makes a claim for inspection under 16(a) (3) or (b), discovery normally will be granted unless special reasons exist justifying the preservation of secrecy. See United States v. Leighton, 265 F.Supp. 27, 39 (S.D.N.Y.1967). United States v. Federman, 41 F.R.D. 339 (S.D.N.Y.1967); W. Barron & A. Holtzoff, Federal Practice & Procedure, Rules Ed. § 2033, at 61 (Wright, ed.) (Supp. 1967); Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276, 1277 (1966).
In this case the government has not presented any special circumstances justifying the restriction or denial of discovery. Therefore, the issue before us is whether the defendants put forward proper claims for disclosure under 16(a) (3) and (b).
3. The 16(a) (3) Motions
Under 16(a) (3) each defendant sought the recorded testimony given before the Los Angeles and Dallas grand juries by named persons said to be employees and former employees of the corporate defendants at the time of giving such testimony.
The court granted the motions of the corporate defendants insofar as they applied to present and former officers, holding that the Rule’s provision allowing discovery of “recorded testimony of the defendant before a grand jury” entitled the corporations as a matter of right to discover their officers’ testimony. Both the defendants and the government object to the court’s ruling, the government claiming that it is too broad, the defendants that it is too narrow.
The government’s construction of Rule 16(a) (3) may be simply stated: the Rule applies only to natural persons, not to corporations — only the testimony of “the defendant” may be discovered, and officers and employees are not defendants but agents of the defendant. The distinction is emphasized by reference to 15 U.S.C.A. §§ 32 and 33 which provide that persons who testify before the grand jury are granted immunity from antitrust prosecution. Thus, the government points out, the officers and employees who testify not only are not defendants but cannot become defendants.
While the government’s argument has the virtue of simplicity, it is misdirected. The revision of Rule 16 was designed to liberalize the prior discovery practice, not restrict it. Moreover, categorization is not as simple as the government would have it. The corporation traditionally has occupied an anomalous place in criminal law. Corporations can act only through human agents, and whether in a particular instance the corporation or the agent is acting is a question that may attain almost theological sublety.
To bolster its restricted interpretation the government argues that because of the threat of economic reprisal after disclosure of their testimony officers and employees may be deterred from furnishing information to the government and from testifying truthfully if they appear as grand jury witnesses. But as Professor Calkins points out,
A witness is not a confidential informant; he must consider his testimony subject to all the obligations of oath required in any judicial proceeding. In revealing damaging evidence before the grand jury, the witness must expect that such evidence will be disclosed at trial. Therefore, any hesitancy that a witness might have in divulging harmful evidence before the grand jury ordinarily would be based upon a fear of the eventual necessity of giving that same evidence in open court rather than the fear that, having once given such harmful evidence, his grand jury testimony might be divulged. Disclosure of the prior testimony will not unduly discourage free statements by witnesses before the .grand jury.
Calkins, Grand Jury Secrecy, 68 Mich.L. Rev. 455, 461 (1965). To the extent that the danger does exist, it can be met by appropriate restrictions in the particular case rather than a denial of discovery in all cases. Indeed, Rule 16(e) was designed to deal with the very evils the government advances. The Advisory Committee’s Note states:
Subdivision (e). This subdivision gives the court authority to deny, restrict or defer discovery upon a sufficient showing. Control of the abuses of discovery is necessary if it is to be expanded in the fashion proposed in subdivisions (a) and (b). Among the considerations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, * * * and the protection of business enterprises from economic reprisals * * -x-
18 U.S.C.A. Rule 16 (Supp.1969).
Balanced against the possibility of employee coercion are weighty considerations favoring corporate discovery. Restricting discovery is contrary to the supposition that disclosure rather than suppression is preferred. See Dennis v. United States, supra. The corporate defendant does not enjoy the privilege against self-incrimination, which has been described as the quid pro quo of limited discovery In preparing the government’s case the prosecutor is able to use the grand jury as his own discovery device, with the subpoenaing of defense witnesses achieving much of the effect of a full-fledged deposition procedure. See Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228, 231 (1964). Finally, the criminal prosecution of corporations, which frequently involves alleged violations of such statutes as the securities and antitrust acts, often resembles the most complex civil cases, necessitating a vigorous probing of the mass of detailed facts to seek out the truth.
Four district courts which have ruled on the question have agreed with the conclusion that corporate defendants are entitled to discovery under 16(a) (3). But they have differed over the question of whose testimony the corporation may discover. In the present case the testimony of officers and former officers was held discoverable. In United States v. Aeroquip Corp., 41 F.R.D. 441 (E.D.Mich. 1966), discovery was granted of the testimony of officers and of corporate representatives who testified in response to subpoenas addressed to the corporation. The court in United States v. I. G. Balfour Co., Crim. No. 2407 (N.D.Ga.1967) allowed the corporation to reach the testimony of all officers, directors and managing agents. In United States v. Venn, 41 F.R.D. 540 (S.D.Fla.1966), the testimony of all officers, directors, agents, and employees, but not former employees, was held discoverable.
In our view these decisions focus too sharply on categorizations of corporate spokesmen that are not necessarily related to considerations underlying a meaningful right of discovery. The significance of a witness’ testimony to the inquiry into potential corporate criminal liability, and to the defense in preparing its case, does not depend upon organizational charts. What all the participants — parties, counsel, grand jury, and trial jury if there be one — want to ascertain is what the witness knows, whether it is competent, and what probative value it has on the issues. The non-officer may play a more significant role in the corporation’s actions under inquiry than an officer. If the door to Rule 16(a) (3) is to be open to corporations at all — and we are of the opinion that it must — its availability should not be based upon corporate titles. Similarly, the fact that a witness has terminated his connection with the corporation after the relevant events have occurred does not bear on the significance of his testimony.
In articulating limits for corporate discovery under Rule 16(a) (3) we bear in mind both theoretical considerations and practical limitations. The discovery rights of the corporation must be reasonably related to corporate activity. Thus, the testimony of an employee that he saw a transaction on a public street on his day off should not be automatically discoverable by the corporate defendant. Similarly, a witness who had no connection with the corporation at the time the relevant events occurred should not be brought within the purview of 16(a) (3) by being put on the corporate payroll on the day that he testifies. On the other hand, limitations on the corporation’s discovery rights must be practicably commensurate with the efficient utilization of the energies of counsel and the court. A test that necessitated a detailed inquiry by the trial judge into a voluminous record would not be satisfactory.
We hold that under Rule 16(a) (3) the defendant corporations may discover the testimony of all present and former officers and employees concerning activities carried on, or knowledge acquired, within the scope of or reasonably relating to their employment. In so holding, we reiterate that if circumstances exist justifying the denial, restriction, or deferral of discovery in the particular case, the government may seek appropriate orders under Rule 16(e). We also acknowledge that in those unusual cases where special circumstances pointing toward the denial or restriction of discovery exist, the determination of whether the interests of justice favor disclosure may necessitate a delicate balancing of opposing considerations, and appropriate deference will be accorded by this court to the trial judge’s determinations. See Symposium, Discovery in Federal Criminal Cases, 33 F.R.D. 47, 65 (remarks of Mr. Justice Brennan). Finally, we recognize that under the revised Rule the trial judge retains discretion in regulating such incidents of discovery as the time, place, and manner of disclosure so as to assure the orderly progress of litigation.
4. The 16(b) motions
Rule 16(b) discovery motions were filed by United and Earl and by Gif-ford-Hill-American seeking an order directing the government to permit them to inspect and copy or photograph all books, papers and documents in the possession, custody or control of the government relating to the subject matter of the indictment, including but not limited to documents submitted to the Los Angeles and Dallas grand juries by Wey-erman and Greenway (former executives of United) and the transcripts of all testimony given before the Los Angeles and Dallas grand juries.
In support of their motions the defendants filed affidavits and lengthy memor-anda detailing the bases of their requests. United and Earl stated that some of the documents submitted to the grand juries contained details of the various purported illegal agreements, and that, while they had duplicates of some of the documents, inspection of the originals was required to determine their authenticity. They stated that since Weyerman and Greenway had been named as co-conspirators under the Dallas indictment, their acts and declarations would be admissible against the defendants. Finally, they claimed a need for the Los Angeles grand jury transcript in order to prepare a possible defense of double jeopardy.
Gifford-Hill-American’s memorandum and supporting affidavit specified a need for the documents submitted by Weyer-man and Greenway in order to discover the declarations of these two alleged co-conspirators, and a need for other documents submitted to the Dallas grand jury in order to authenticate documents in Gifford-Hill-American’s possession.
The court granted both motions with respect to documents submitted by Weyerman and Greenway to the Los Angeles grand jury and by all witnesses to the Dallas grand jury, “except that this Order does not authorize disclosure of such documents which are not material to proof of the conspiracy alleged in the indictment or which deal with collateral matters which may possibly arise at trial.” In other respects the motions were denied.
The government does not challenge the order insofar as it directs the production of documents submitted to the grand juries. But the defendants maintain that the trial judge erred in failing to make available all material documents in the government’s possession and in restricting discovery, where granted, to items relevant to the proof of the conspiracy.
First we consider documents other than grand jury transcripts. Unlike Rule 16(a), Rule 16(b) imposes as a prerequisite to discovery the requirement that there be a showing of materiality to the preparation of the defense and of reasonableness. Because the defendant cannot be expected to know the exact nature of what he has not yet seen, specific designation is not required. See Advisory Committee’s Note, 18 U.S.C.A. Rule 16 (Supp.1969). If the documents in the possession of the government are voluminous the defendant need not lay a detailed foundation of materiality for each item. United States v. Fancher, 195 F.Supp. 448, 449, 450 (D.Conn.1961); United States v. Greater Blouse, Skirt & Neckware Contractors Ass’n, 177 F.Supp. 213 (S.D.N.Y.1959); cf. Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). However, there must be a definite delineation of the subject matter sought. A blanket demand for “all material information in the possession of the government” does not suffice to establish materiality. See Barron & Holtzoff, supra at § 2033 (Supp.1967); Rezneck, supra at 1280; cf. People v. Cooper, 53 Cal.2d 775, 770, 3 Cal.Rptr. 148, 157, 349 P.2d 964, 973 (1960); Louisell, Criminal Discovery; Dilemma Real or Apparent, 49 Calif.L.Rev. 56, 83-84 (1961).
The shotgun motions of the defendants did not comply with these requirements, and the trial judge did not err in refusing the defendants’ requests for “all material documents.” However, the materiality that must be shown is materiality to the preparation of the defense, not materiality to proof of the conspiracy. The court’s order should be modified to apply the correct materiality standard.
We turn now to grand jury transcripts. The government’s opposition to the defendants’ discovery of grand jury transcripts rests primarily on the contention that Rule 16(b) does not apply to grand jury transcripts. The government says that revised Rule 16(b) is a restatement of former Rule 16, under which grand jury transcripts were not discoverable. This disregards the fact that the old version of Rule 16, unlike the revised Rule, restricted discovery to items “obtained from or belonging to the defendant or obtained from others by seizure or by process.” The government also argues that reading the discovery provisions of Rule 16 in conjunction with the provisions of Rule 6 relating to grand jury proceedings precludes grand jury transcripts from discovery under 16(b). We find nothing on the face of either rule that commands this result. Rule 16(b) permits the court to allow the defendant to inspect and copy “books, papers, documents, tangible objects, buildings or places * * Grand jury transcripts are “documents.” Cf. Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, 136-137 (1953). Rule 6(e) prohibits the disclosure of grand jury transcripts except by order of the court, but its provisions do not delimit when such orders should or should not be made in discovery proceedings.
Finally, the government urges that the requirement of “particularized need” as enunciated in cases construing Rule 6(e) prior to the amendment of Rule 16 is an implied limitation on a defendant’s discovery rights under Rule 16. However, the draftsmen of the revised Rule were careful to make exceptions to its otherwise all-inclusive provisions for items subject to discovery under the Jencks Act and for internal government reports and memoranda. It is improbable that an exception to Rule 16 (b) for the statutory discovery provisions of the Jencks Act would be specifically mentioned while an exception for the judicially developed doctrine under Rule 6(e) of discovery based on particularized need would be included only by implication. The government emphasizes strongly the “long established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077, 1081 (1958). Access to grand jury transcripts, like all discovery in criminal cases, traditionally has been restricted, but there has been a growing tendency to limit secrecy after the grand jury has completed its work to those cases where secrecy serves legitimate policy considerations. See Dennis v. United States, supra; United States v. Youngblood, supra; Calkins, supra, Sherry, Grand Jury Minutes; The Unreasonable Rule of Secrecy, 48 Va.L.Rev. 668 (1962)
Factors arguing for secrecy do not necessitate the restrictive construction of Rule 16(b) urged by the government. The prevention of accused’s arrest is not a consideration at the pre-trial discovery stage. Protection of individuals not indicted is a limited problem at pre-trial —if no indictment is returned there is no disclosure, and if some persons are indicted and some are not testimony concerning persons not indicted can be deleted if not material to preparation of the defense. The dangers arising from possible intimidation of witnesses have been discussed in an earlier section of this opinion. See text at note 22, supra. Discovery need not compromise the grand jury’s deliberative process, since the deliberations and notes of the grand jury, as opposed to testimony, may not be material and if material may be the subject of protective orders where appropriate.
In circumstances where nondisclosure serves legitimate ends, the judge is allowed under 16(e) to deny, restrict, or defer discovery and the government is permitted to seek appropriate restrictive orders. Only where secrecy does not serve legitimate, overriding purposes is discovery of grand jury transcripts mandated by the Rule. Moreover, in eases where disclosure of grand jury transcripts to the defendant i,s appropriate, discovery need not be a one-way street, for Rule 16(c) authorizes the court to condition its discovery order in favor of the defendant on the defendant’s allowing the government access to items material to the preparation of the government’s case.
Turning to the present case, discovery to ascertain the existence of double jeopardy fits well within the Rule 16(b) requirement of materiality to the preparation of the defense. According to the defendants’ allegations, the Los Angeles grand jury has completed its work, therefore production of its transcript in the Texas District Court would not appear unreasonable. Unless the government shows that the information regarding possible double jeopardy can be obtained from other sources, or that portions of the grand jury transcripts do not bear on the double jeopardy issue, or that a denial, restriction, or deferral of discovery of all or part of the transcripts is otherwise appropriate, United and Earl’s motion for the production of grand jury transcripts should be granted.
5.
The defendants’ petitions for writs of mandamus are granted. The defendants are entitled to be allowed the discovery sought by them to the extent provided by this opinion. However, the government may, if it desires, present to the district judge appropriate motions under Rule 16(c) and 16(e).
Writ granted.
. 15 U.S.C.A. § 1 (1963).
. The effective date of the amendment of Rule 16 was July 1,1966.
. The defendants’ motions
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_appel1_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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".
TRI-STATE TRUCK SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 79-1611.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) on Jan. 10, 1980.
Decided Feb. 13, 1980.
David L. Robertson, Jeffrey J. Bernstein, Bogarad & Robertson, Paris, Pa., for petitioner.
Andrew F. Tranovich, Allison Beck, N. L. R. B., Washington, D. C., John S. Irving, Gen. Counsel, John E. Higgings, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Eliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.
Before GIBBONS, ROSENN and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
Petitioner Tri-State Truck Service, Inc. asks this court to review and set aside a National Labor Relations Board order which found that Tri-State had engaged in unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by discharging two of its employees, James McDonald and Thomas Kovach, and which ordered Tri-State to cease and desist from such unfair labor practices and to reinstate the employees with back pay. 241 NLRB No. 32. The Board cross-petitions for enforcement of its order. We find that the Board’s conclusion that Tri-State violated the Act is not supported by substantial evidence on the record as a whole. Therefore, we grant the petition for review and deny the Board’s cross-petition for enforcement.
I.
Tri-State is engaged in the business of selling fuel oil to businesses and private homes. It supplies more than half of the fuel oil sold in the West Virginia counties of Hancock and Brooke and in Washington County, Pennsylvania. Fuel oil deliveries are made by five permanent drivers employed by Tri-State.
During the work week which began on Monday, January 16, 1978, Tri-State was forced to suspend its regular operations for two days due to a heavy snowfall. On Tuesday of that week, prior to closing down early for the day, Tri-State’s president, William Snow, informed all of the drivers, who had been gathered together in the garage, that they might have to work during the weekend in order to make deliveries which were cancelled due to the snow storm. It is uncontested that none of the employees made any comments with respect to Snow’s statement; none of them protested; no one asked any questions pertaining to premium pay or any other condition of weekend work. See T.R. at 12-13, 25-26 (McDonald’s testimony); T.R. at 73 (Kovach’s testimony). Hearing no response, Snow returned to his office after speaking to the drivers.
The record contains no evidence that McDonald, Kovach or any of the other employees had any further conversation during the week with Snow or any other management official, in regard to weekend work. There was evidence, however, that some of the employees had discussed the matter among themselves. McDonald and Kovach, who lived at McDonald’s home, had several conversations to the effect that they should receive time and one-half for weekend work. In addition, they called David Howell, a fellow driver, who apparently shared their concern. But it bears repeating that there is no evidence in the record that any of these employees expressed these concerns to management or that management had any knowledge that any employees had met to discuss weekend work or any other work-related matter.
It was not until Saturday, January 21, 1978, that Tri-State’s management, for the first time, heard anything about any claims for premium pay. Early Saturday morning, Snow instructed the fuel oil supervisor, Lipovitch, to call the drivers into work. McDonald was the first driver called. He asked Lipovitch if he would receive time ‘and one-half for working on Saturday. Lipovitch responded that McDonald had better talk to Snow, to whom he handed the telephone. When McDonald repeated his question to Snow, Snow explained that McDonald was not entitled to time and one-half pay because he had not yet worked forty hours in that week. McDonald responded that he would not work unless he received the premium rate. At that point, Snow warned McDonald that if he did not come in on Saturday, he need not come to work on the following Monday. Snow then terminated the conversation. Immediately after the phone call, McDonald told his wife and Kovach that he had been fired. On learning this, Kovach told McDonald that he would “stick with” him in his demand for premium pay. T.R. at 19-20.
Within an hour, Snow called Kovach. Kovach also asked if he would receive time and one-half pay for Saturday work. When Snow responded in the negative, Kovach told him that he was “sticking with” McDonald and then asked if that meant he should not report for work on Monday. Snow responded that Kovach should draw his own conclusion. T.R. at 47, 62-63.
After these conversations, Snow waited until noon for McDonald and Kovach to report to work. When they did not arrive, their trucks were sent out with substitute drivers. Snow admitted, however, that had McDonald and Kovach reported to work later Saturday morning, they would have been reinstated.
McDonald’s and Kovach’s charges against Tri-State were tried before an Administrative Law Judge. The Law Judge found that McDonald and Kovach had been engaged in concerted activity related to their wages and working conditions, which was protected under the National Labor Relations Act. Moreover, the Law Judge held that Tri-State had reason to know of this concerted activity when Kovach and McDonald were fired, because the Law Judge found that Snow knew the two employees lived together and that Kovach had specifically informed Snow that he was “sticking with” McDonald. Accordingly, the Law Judge concluded that Tri-State violated section 8(a)(1) of the Act when it fired the two employees. This conclusion was upheld by the Board.
We hold that the Board’s determination that Tri-State knew that its employees were engaged in concerted activities which were protected under the Act, is not supported by substantial evidence based upon the whole record.
II.
Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, guarantees that “[e]mployees shall have the right to . . . engage in other concerted activities for the purpose of . mutual aid or protection . . . .” This guarantee is enforced through section 8(a)(1) which makes it “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise” of section 7 rights.
But section 8(a)(1) does not taint every employer act which may impact upon employees’ protected activities. Such a broad reading would effectively erase the word “unfair” from the statute. Thus, both the Supreme Court and this court have recognized that the question of whether an employer’s act violates section 8(a)(1) depends on the employer’s motive. N. L. R. B. v. Brown, 380 U.S. 278, 283, 85 S.Ct. 980, 983, 13 L.Ed.2d 839 (1965); Edgewood Nursing Center, Inc. v. N. L. R. B., 581 F.2d 363, 368 (3d Cir. 1978). For an employer to have the requisite illicit motive, he must, of course, know of the employees’ concerted activities; only then can the employer’s actions be said to have been directed at restraining employee rights. The Supreme Court has described employer knowledge as an essential requirement of section 8(a)(1) violations:
In sum, § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.
N. L. R. B. v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed.2d 1 (1964) (emphasis added); accord, Hugh H. Wilson Corp. v. N. L. R. B., 414 F.2d 1345, 1355 (3d Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1970); N. L. R. B. v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973). Thus, Tri-State’s section 8(a)(1) violation must be predicated on a finding that Snow knew, or had reason to know, that McDonald and Kovach were engaged in concerted activity. We must therefore examine the record to determine whether there is substantial evidence to justify such a finding.
III.
We are bound to enforce the Board’s order if we find that its decision is supported by “substantial evidence on the record as a whole.” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The term substantial evidence has been variously defined, but in our view, one of the earlier statements remains the best: “Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) (Hughes, C. J.); see Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Moreover, the evidence must be substantial in relation to the “whole record.” “The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. N. L. R. B., 340 U.S. at 488, 71 S.Ct. at 464. We therefore cannot accept the Board’s conclusion unless it seems reasonable in light of all of the evidence in the case.
In this case, the Board’s conclusion that Tri-State knew of its employees’ concerted activities does not meet that standard. Examination of the “whole record” reveals that the only conclusion which can reasonably be derived from the evidence is a conclusion contrary to that reached by the Board. It is uncontroverted that no employee brought up the subject of premium pay when Snow first mentioned the prospect of Saturday work. It is also uncontroverted that neither Snow nor any other Tri-State official was informed, at any time during the remainder of the week, of any employee sentiment requiring premium pay for Saturday work regardless of hours worked, despite the several alleged employee discussions on the subject. Therefore, the first inkling that Tri-State could have had, regarding a “concerted” request for premium pay for Saturday work, had to have been revealed in Snow’s conversation with McDonald.
But all accounts of McDonald’s telephone conversation with Snow belie this contention. McDonald testified that he asked Snow simply, “this is time and a half isn’t it.” T.R. at 19; see id. at 56 (Snow’s testimony). McDonald made no demand on behalf of all of the drivers. Nor did McDonald inform Snow that other drivers supported his demand for premium pay and would also refuse to work without it. The only reasonable conclusion that Snow could have drawn from talking to McDonald was that McDonald was acting alone. Even after, talking to McDonald, Snow would have been completely unaware of any group action which would rise to the level of “concerted” activity protected under the Act. See N. L. R. B. v. Northern Metal Co., 440 F.2d 881 (3d Cir. 1971); Mushroom Transportation Co. v. N. L. R. B., 330 F.2d 683 (3d Cir. 1964). At the most, Snow could only have been made aware of McDonald’s “mere griping.” Id.
The subsequent conversation that Snow had with Kovach contained nothing which could have reasonably changed Snow’s perception of his employees’ actions. It is significant that Kovach did not testify regarding this important conversation. The only accounts of what took place are found in Snow’s testimony and in the testimony of Mrs. McDonald, who was in the room while Kovach was on the telephone with Snow. Both accounts indicate that, like McDonald, Kovach did not inform Snow of any group action. Kovach demanded time and one-half for himself only. He did not refer to activity by any group. He did not tell Snow that he or McDonald had communicated with all of the other drivers and that they would support his position. Kovach asked what would happen to him if he refused to report to work on Saturday. T.R. at 62. No mention was made of group action or group consequences. In short, as in McDonald’s case, the evidence could only have led Snow to conclude that Kovach was pressing an individual claim.
Kovach did tell Snow that he was “sticking with” McDonald. The Administrative Law Judge specifically relied on that statement in concluding that Snow had knowledge of the concerted nature of McDonald’s and Kovach’s activities when he fired them. Snow’s testimony, however, indicates that Kovach made this statement after it had been implied that Kovach would be fired for refusing to work on Saturday. If this were credited, then Snow could not be held to have known of the alleged concerted activity when he fired Kovach. But the Law Judge credited the testimony of Mrs. McDonald, who had overheard Kovach speaking on the telephone with Snow. According to Mrs. McDonald, Kovach told Snow that he was “sticking with” McDonald earlier in the conversation. Thus, the Law Judge found that Snow knew of the concerted activities when he fired Kovach. See note 3 supra.
We have serious doubts as to whether Mrs. McDonald’s testimony as to Kovach’s conversation with Snow was “adequate” to support the conclusions drawn by the Law Judge and the Board. Consolidated Edison Co. v. N. L. R. B., supra. Clearly, on the basis of the whole record, more credence should be given to the testimony of a party to the conversation than to someone who claims to have overheard one half of the conversation. But even assuming the facts as the Law Judge found them — that before Snow fired Kovach, Kovach had told Snow that he was “sticking with” McDonald — we do not believe that this ambiguous phrase without more constitutes substantial evidence to support the conclusion that Snow had knowledge that Kovach and McDonald were engaged, in concert, in an activity protected under the Act.
For activity to be “concerted” so as to be protected under the labor laws, it must be “inclined to produce group or representative action.” Hugh H. Wilson Corp. v. N. L. R. B., 414 F.2d at 1348; see N. L. R. B. v. Northern Metal Co., supra; Mushroom Transportation Co. v. N. L. R. B., supra. Therefore, before an employer can be charged with a section 8(a)(1) violation, it must have knowledge, or reason to know, that the employee activities have coalesced into group action for mutual aid or protection. Hugh H. Wilson Corp. v. N. L. R. B., 414 F.2d at 1355. The mere facts that two employees react similarly, and that the one, in empathy with his close friend also decides to do the same thing, does not lead to the conclusion that they are acting “concertedly” for the purposes of the Act. Without knowledge of this coalescence, and knowledge that the employees had jointly determined not to work in the absence of premium pay, the employer may justifiably conclude that, although two or more employees act in the same fashion, they are acting individually. The Board has not met its burden of proving that the facts .demonstrate the employer’s knowledge of concerted activities.
Here, the evidence, even when viewed in the light most favorable to the Board, shows only that Snow knew that McDonald and Kovach were doing the same thing — refusing to work on Saturday without premium pay. Kovach’s statement that he was “sticking with" McDonald carried no connotation that the two had banded together for mutual aid or protection or that any sort of representational activity was taking place. Even if this cryptic statement of Kovach’s did carry such a connotation, that statement could not overcome the contrary impression, which arises from the “whole record” — that no group action was involved. Therefore, Kovach’s statement cannot and does not, by itself, constitute substantial evidence that Tri-State knew that its employees were engaged in a concerted activity. Lacking this knowledge, Tri-State could not have discharged McDonald and Kovach with the illicit motive requisite in section 8(a)(1) violations. N. L. R. B. v. Brown, supra; Edgewood Nursing Center, Inc. v. N. L. R. B., supra.
Snow’s knowledge that Kovach lived in McDonald’s house does not change this result. That the two men occupied the same house and that they both refused to work without premium pay does not necessarily suggest that they were acting in concert as contemplated within the purview of the Act. When viewed against all of the other evidence in the case, none of which contains any suggestion of Tri-State’s knowledge of concerted activity, it can hardly be maintained that Snow’s mere awareness that Kovach and McDonald shared common living quarters constitutes evidence sufficient to support the Board’s conclusion that TriState had knowledge of protected, concerted activity.
IV.
Therefore, we conclude that the two items of evidence upon which the Board relies — Kovach’s statement and Snow’s knowledge that Kovach and McDonald lived together — do not, in light of the whole record, constitute substantial evidence that Tri-State knew that its employees were engaged in a concerted activity. Rather, the overwhelming import of the record in this case is that Tri-State was not informed, and therefore had no knowledge, of any actions undertaken by its employees for their mutual aid and protection. Accordingly, an essential element for a section 8(a)(1) violation is missing in this case.
In light of the foregoing, we will grant Tri-State’s petition to set aside the Board’s order of March 19,1979. The Board’s cross-petition for enforcement of its order will be denied.
. Tri-State also challenges the scope of the relief granted by the Board. It claims that it had made an unconditional offer of reinstatement to Thomas Kovach thereby cutting off its liability to him for back pay. In the view we take of the case, this point need not be reached.
. Both McDonald and Kovach admit that they did not discuss weekend work with Snow at any time from and after the Tuesday meeting until the following Saturday. T.R. at 25 (McDonald); T.R. at 82 (Kovach).
. There is some dispute as to what point in the conversation this statement was made. Snow’s testimony implies that Kovach said he would stick with McDonald only after Snow had warned Kovach against failing to work on Saturday. The Administrative Law Judge generally credited Snow’s testimony, but in this instance he adopted the time sequence testified to by McDonald’s wife, Kathy McDonald, who was not a party to the conversation, over that of Snow. A.L.J. Op. at 15. We question the propriety of this decision. However, even accepting the time sequence of the conversation as found by the Law Judge, we conclude that substantial evidence on the whole record does not support the conclusion that Snow knew that McDonald and Kovach were acting in concert. See pp. 70-72 infra.
. Tri-State does not challenge the finding that Kovach and McDonald were engaged'in a “concerted” activity. Our holding that Tri-State had no knowledge of the fact that Kovach and McDonald were acting in concert when it fired them, obviates the necessity of deciding whether their actions reached the level of “concerted” activities which are protected under the labor laws. We entertain considerable doubt as to whether that standard was met in this case.
In Mushroom Transportation Company v. N. L. R. B., 330 F.2d 683, 685 (3d Cir. 1964), this court recognized that conversation alone could constitute a concerted activity. But we noted that a conversation which qualifies as concerted activity must be related to group action:
It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees.
Here, the alleged concerted activities arose from the conversations among Kovach, McDonald and Howell in which they expressed their opposition to Saturday work without premium pay. While these conversations do indicate a concerted plan to request time and one-half, it is questionable whether they indicate a concerted intention to refuse to work unless premium pay was granted. Rather, there is no indication that when McDonald refused to work without premium pay in the face of a threatened discharge, he had any idea whether Kovach, or any of the other employees, would follow suit. It was only after McDonald’s conversation with Snow that Kovach told McDonald that he would go along with him. Similarly, only after McDonald had spoken with Snow, did McDonald call Howell to find out what he would do. Thus, on this record, it appears that while the employees may have acted in concert in planning to ask for time and one-half, any decision refusing to work without it was made on an individual basis.
. The Board seeks to avoid this conclusion by arguing that Kovach and McDonald were not actually fired until later in the day when Snow actually gave up waiting for them. Under this analysis^ Snow would have known of concerted activity when he fired Kovach and McDonald regardless of the sequence of the conversation.
We need not address the Board’s argument in light of our holding that Kovach’s statement, even if it occurred before he was fired, does not reveal that Snow knew of concerted actions. Nonetheless, it seems to us that the Board strains credulity when it argues that Kovach and McDonald were not fired until some arbitrary point after their telephone calls with Snow — i. e. until Snow finally decided to send out the trucks with replacement drivers. Suppose Kovach and McDonald had changed their minds and decided to report for work, but that they were delayed by the weather and did not arrive until after the trucks had been sent out. Under the Board’s theory, their firing would turn solely on their unlucky misfortune. A more reasonable reading of the record would be that McDonald and Kovach were terminated when they indicated, on the telephone, that they would not work on Saturday. They apparently thought they were fired at that time, and with good reason. T.R. at 20. But evidently Snow would have reinstated them if they subsequently changed their minds and reported to work.
. We note that in other cases where this issue has been raised and where a finding that the employer had knowledge of employees’ concerted activity was found to be supportable, the evidence “on the whole record” with respect to such knowledge was much more extensive than in the instant case. See, e. g., N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); Hugh H. Wilson Corp. v. N. L. R. B., supra.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_appel1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
PENNSYLVANIA LUMBERMENS MUTUAL FIRE INSURANCE CO. et al., Appellants, v. J. K. NICHOLAS, d/b/a J. K. Nicholas & Company, Appellee.
No. 18813.
United States Court of Appeals Fifth Circuit.
Dec. 13, 1961.
George J. Baya, Miami, Fla., for appellant.
Wm. G. Ward, Louis M. Jepeway, Ward & Ward, Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.
TUTTLE, Chief Judge.
This is the second appearance of this case here. Our first opinion is to be found in 5 Cir., 253 F.2d 504. In the meantime, the case has been retried by the trial court without a jury and a judgment has again been entered in favor of the insured, Nicholas, and against appellants for substantially the same amount as awarded in the judgment previously appealed from.
The basic question before the court here, as it was earlier in the case, is what, if any, effect is to be given in the adjustment of a fire loss involving the valuation of part of the stock of goods only partially damaged by the fire, to information received by the insured and not communicated to the insurers prior to the furnishing of proof of loss that full or partial credit would be given to the insured for part of the stock of goods and which credit, when given later, amounted to considerably more than the apparent value of this salvage.
The facts that give rise to this question are substantially as follows: The fire occurred on November 10, 1948. Merchandise consisting of cigarettes, tobacco, candy and numerous other items which were immediately thought by appellees to be salvageable was removed within ten days or two weeks to a new location for protection. Later, other items also were moved for protection. On January 7, the insured made his proof of loss with inventory attached; the proof of loss assigned a value of $4,900 to the salvage. The insurance companies made some examination of the merchandise, but did not inventory it and they did not agree to take it at the $4,900 valuation. In the meantime, commencing the day after the fire, negotiations were commenced by the insured to cause his suppliers, notably cigarette companies selling nationally advertised tobaccos, to give him credit for the undamaged and partially damaged stock to prevent its being put on the market through salvage channels. Considerably before the date of the filing of the proof of loss, the insured had received written offers from several of the suppliers offering to give him credit for merchandise supplied by them, as and when it was returned to them in certain specified conditions. No knowledge of this fact came to the attention of the insurers until after testimony of the insured was taken under oath following submission of proof of loss. Thereafter, shortly after August 2, 1949, the insured actually received credits from his suppliers for items that were in the inventory of loss in the amount of $11,587.73.
The appellant contended that as a matter of law the amount of the salvage was at least the $11,587.73 figure representing actual cash credits received by the insured plus some $1,500 actually received from the sale of additional parts of the inventory rather than the $4,900 valuation testified to by the witnesses on the trial. Appellants also contended that the policies were voided because of the conduct of the insured in not informing the insurers of the existence of such offers of credits and because of the inclusion in the proofs of loss of items that were not in fact destroyed or damaged in the fire. It was contended that these facts constituted fraud on the insurers which had the effect of voiding policies.
We dispose first of the special defense of fraud. The trial court on two occasions has found that there was not sufficient evidence of a willful or intentional concealment to constitute fraud. This, of course, is a question of fact as to which it is the primary duty of the trial court to make its determination. We cannot conclude that the decision of the trial court here was clearly erroneous. See Hartford Fire Insurance Company v. Haagar, 5th Cir., 196 F.2d 270.
Coming next to the question as to the significance of the credits later received which, without dispute, yielded to the insured more than twice the amount which the court has allowed as the salvage value of the fire damaged inventory, we must consider what we have previously determined to be the law governing such situations. In our previous opinion, 253 F.2d 504, we perhaps oversimplified the statement of the legal question there involved by assuming that the case as it was there presented showed that immediately following the fire Nicholas had received definite assurances from his suppliers that they would allow him the $12,179.00 for part of the goods. What actually happened was this: Prior to the filing of proof of loss on January 7, 1949, the assured contacted several of his suppliers asking their position in relation to the damaged merchandise. The American Tobacco Company replied by requesting the return of all its merchandise and agreed “When all the goods are received at our factory credit will be issued in your favor for full value for all merchandise received intact with revenue stamps attached.” The Phillip Morris Company offered “to accept the return of this merchandise and collect for your account the value of the internal revenue stamps which, in the case of cigarettes, is If per package and slightly over one-half of the net value of same.” The Wrigley Company, Beech-nut Packing Company and Lifesavers Corporation offered the assured “full credit” for all damaged merchandise. Similar offers were made by other suppliers.
Now, of course, the assured did not and could not be expected to know that these offers would ultimately produce exactly $11,587.73 in credits. In this sense, the trial court was correct in concluding that there was no “outstanding assurance from any of these suppliers * * * either immediately after the loss or before the filing of the proof of loss, that if the insurance companies would not take such goods for $4,941.53, they (the suppliers) would take them at $11,587.73 or at $12,179.00 or at any other sum.” However, by correlating the offers with the damaged merchandise included in his inventory after the fire, the assured could have translated the offers into a dollars and cents amount approximating the $11,-587.73 figure which he ultimately received. In other words, if the assured was offered If for each package of Phillip Morris Cigarettes with revenue stamps attached and the assured then had 100 of such packages in his possession, this would amount to an offer of $7.00 for that merchandise. Even if the assured did not then know that he had 100 such packages, this fact would not alter the conclusion that the assured had an offer of $7.00 for the cigarettes. Merely because an offeree may not know that exact quantity of merchandise which he has which will meet the terms of the offer does not destroy the existence or legal validity of the offer. Restatement, Contracts, Section 25 Illus. 3. In such a case the total contract price must necessarily be determined after the offeree has discovered how much of his merchandise can be delivered in accordance with the terms of the offer.
In the instant case, the assured could not know the exact amount of credits which he would receive until his suppliers examined the damaged merchandise and determined just what they would accept. Whatever merchandise they did accept they were bound to pay for in accordance with the terms of their offers, (i. e. “full credit”, “If per package”, etc.). Merely because the amount of damaged merchandise which they would accept, and the total credits produced by their acceptance, was not determined until some time after the assured filed his proof of loss on January 7, 1949, that cannot vitiate the fact that the assured, in a very real sense, was offered $11,587.73 for the merchandise prior to January 7th. In light of this analysis, the trial court was incorrect in concluding that the assured had no outstanding assurances from his suppliers that they would take the damaged merchandise back and issue him credits approximating $12,000.
On the first appeal, we directed the trial court to receive evidence pertaining to the offers' received by the assured from his suppliers. In accordance with this direction, the trial court received in evidence the correspondence between the assured and his suppliers, but concluded, as noted above, that this correspondence did not produce any outstanding assurances from the suppliers that they would take the goods back for $11,587.73. We have already held that this was error. The question remains, however, as to the effect to be given the offers in determining the market value of the damaged merchandise.
With respect to this question, we stated, on the first appeal, that “the value of a stock of merchandise the day after a fire depends upon what those valuing it consider it can be expected to bring in the [open] market.” 253 F.2d at 506. In making this determination, one authority in the field of damages has declared that:
“Manifestly, since we are looking at value from the point of view of one who is complaining of being deprived of the thing valued, it is the highest price that he could have realized that we are seeking. The owner would have searched for those purchasers who would pay most for the property. * * * Likewise, if a high price for the property could actually have been secured at the time in question, this should be accounted its then market value * * McCormick on Damages, at pages 168-69.
Since, in our view, the assured could have realized $11,587.73 for the damaged merchandise had he returned it to the suppliers before he filed the proof of loss on January 7, 1949, we hold that $11,587.73 represents the true salvage value of the damaged merchandise.
The assured contends that, even if the damaged merchandise had a salvage value approximating $12,000, it cost him $8,600 to return the merchandise to his suppliers, thereby wiping out the difference between the $12,000 figure and his estimated salvage value of $4,900. After the fire, the assured moved his business and most of the damaged merchandise to a new location. Until October 1950, he continued to dispose of the damaged merchandise at the same time he was conducting business at this new location. The $8,600 figure was predicated on the assumption that it would have taken the assured four complete months to return the damaged merchandise to his suppliers if he had worked on this and nothing else after the fire. The assured figured his overhead, including rent, at $950 per month, and figured that his services and those of his assistants in connection with the return of the merchandise were worth $1,200 per month.
In our opinion, the appellants must reimburse the assured for the expense of returning the damaged merchandise only to the extent that this expense includes (a) the freight cost of sending the merchandise back to the suppliers; the assured testified that this amounted to $330.74; (b) the cost of negotiating the offers with the suppliers, such as writing letters, sending telegrams, and including a reasonable allowance for the assured’s services in relation thereto; and (c) overhead expenses and a reasonable allowance for the services of the assured and his assistants incurred with respect’ to the actual packaging and sending back of the merchandise to the suppliers. The assured was obligated, by express provisions of the insurance contracts, to “protect the property from further damage — forthwith separate the damaged and undamaged personal property, put it in the best possible order, furnish a complete inventory of the destroyed, damaged and undamaged property.” Any expenses incurred in connection with the assured’s discharge of this obligation are not recoverable in the absence of a provision in the insurance policies providing for such recovery. Puget Sound Lumber Co. v. Mechanics and Traders Ins. Co., 168 Wash. 49, 10 P.2d 568.
Unfortunately, our decision necessitates a further trial with respect only to the issue of recoverable expenditures. It should be a short, and we hope, the final, trial in this case.
The judgment is reversed and the case remanded for further proceedings consistent with the views expressed in this opinion.
. On the first trial this figure was spoken of as $12,179. On the second trial it appears to have been $11,587.73.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COBLEIGH et al. v. WOODS, Housing Expediter.
No. 4392.
United States Court of Appeals First Circuit.
Jan. 26, 1949.
•.....*■-------
Alvin A. Lucier, of Nashua, N. H., for appellants.
William A. Moran, Sp. Litigation Atty., of Washington, D. C. (Ed Dupree, Jr., Gen. Counsel, and Hugo V. Prucha, Asst. Gen. Counsel, -both of Washington, D. C., on the brief), for appellee.
Before MAGRUDER, -Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.
MAGRUDER, Chief Judge.
Appellants are the owners and operators of an apartment building in Nashua, New Hampshire, and as such had been subject to the Rent Regulation for Housing (8 F.R. 7323) issued under authority of the Emergency Price Control Ac-t of 1942, as amended, 50 U.S.C.A. Appendix § 901 et seq. Under § 4 of the regulation, -the rents which were being charged for the twenty- , eight apartments in question on March 1, 1942, became the lawful maximum rents, and these maximum rents continued in effect without change u-p to and including June 30, 1946. '
On June 30, 1946, the Emergency Price Control Act, as amended, terminated by its own limitation, Congress having failed to enact legislation for its furthur extension. During the period between July 1 and July 25, 1946, appellants caused to be served upon the tenants notices to the effect that on -the next rent date their rents were to be increased $2 per week, which notices were valid under the laws of the State of New Hampshire. During this period July 1 —July 25, 1946, appellants demanded and received from each tenant for the use and occupancy of his respective apartment $2 per week over and above the lawful maximum rent which had been in effect up to the lapse of rent control on June 30, 1946; and appellants continued to demand and receive this additional rent until they were restrained from doing so by interlocutory injunction of the court below on March 12, 1947.
Meanwhile, the Price Control Extension Act of 1946 had become law on July 25, 1946. 60 Stat. 664, 50 U.S.C.A. Appendix, § 901 et seq. Under § I of this Act, the Emergency Price Control Act of 1942, as amended, was extended for a year, by striking out the date “June 30, 1946” in § 1(b) of the latter Act and substituting “June 30, 1947”. Also, and more important for present purposes, § 18 of the Price Control Extension Act contained -the following explicit and unambiguous provision: “Sec. 18. (1) The provisions of this Act shall take effect as of June 30, 1946, and (2) all regulations, orders, price schedules, and requirements under the Emergency Price Control Act of 1942,- as amended '* * *, and the Stabilization Ac-t of 1942, as amended, which were in effect on June 30, 1946, shall be in effect in the same manner and to the same extent as if this Act had been enacted on June 30, 1946, * * *. Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30, 1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the Stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts * *
Congress thus made clear in the proviso above quoted that it did not intend the Extension Act to be retroactive in the sense of rendering illegal the receipt of rents which had been lawfully collected during the interregnum period. But apart from that, Congress prescribed that the Rent Regulation for Housing was to be deemed to have remained in effect without interruption as if the Extension Act had been enacted on June 30, 1946, with the consequence that if a landlord had raised his rents during the brief period of no control, such rents, on and after July 25, 1946, were necessarily rolled back, and the lawful maximum rents reverted, to the levels fixed by the regulation in effect on June 30, 1946. The statutory language is crystal-clear, and its meaning is only confirmed by reference to the legislative history. See remarks by Senator Barkley, a member of the conference committee, in-explaining the bill on the Senate floor. 92 Cong. Rec. 9812 (1946). The constitutional power of Congress so to provide is none the less effective though it may involve prospective modification of existing agreements between landlords and tenants, valid when made. Fleming v. Rhodes, 1947, 331 U.S. 100, 107, 67 S.Ct. 1140, 91 L.Ed. 1368; Taylor v. Brown, Em.App. 1943, 137 F.2d 654, 659, certiorari denied 1943, 320 U.S. 787, 64 S. Ct. 194, 88 L.Ed. 473.
On October 7, 1946, the Price Administrator (the official predecessor of the present appellee) filed in the court below a complaint against appellants under § 205 of the Price Control Act, as amended, claiming that the landlords had overcharged their tenants an aggregate of $316 for the six-week period July 26-September 7, 1946. The complaint prayed for equitable relief under § 205(a) of the Act by way of injunction against continued violations and an incidental order directing the landlords to refund to the tenants the amounts of the respective overcharges. The complaint also asked for judgment for the plaintiff, on behalf of the United States, in the sum of $948 — or three times the amount of the overcharges. In support of this recovery of statutory damages, the complaint set forth that the tenants had failed to institute action under § 205(e) of the Act within thirty days after the dates of the overcharges, and therefore that under the provisions of such subsection the Administrator was authorized to sue for treble damages on behalf of the United States. Since the granting of the full relief thus asked for under these two heads would result in the landlords’ being mulcted in fourfold the amount- of the overcharges, the Administrator moderated his prayer by the further provision in the complaint that, “if restitution shall be granted by the Court, the prayer for judgment in favor of the Administrator shall be for twice the amount of overcharges.”
On January 13, 1948, the court (1) ordered appellants to make restitution to the tenants of the amount of their respective overcharges, which was found to be in the total sum of $328 rather than $316 as alleged in the complaint, and (2) gave judgment for plaintiff, on behalf of the United States, in the sum- of $328. This judgment is one of the two now under review in the present consolidated appeal. The other judgment, rendered on the same day, was upon a second complaint against these appellants filed by the Housing Expediter oil June 23, 1947. This complaint was in all essentials like the earlier one, except that it alleged overcharges of rent for the period September 7, 1946, to March 12, 1947, not covered by • the earlier complaint, It is unnecessary to say anything more about the second complaint or the judgment' which was rendered thereon. Our discussion is equally applicable to both complaints.
Though the tenants may -fail to institute actions for statutory damages under § 205(e) of the Act, it is nevertheless within the power of a court of equity, un-1 der a complaint filed by the Administrator pursuant to § 205(a), to order the landlord to make restitution to the tenants of the amount of the overcharges. This was held in Porter v. Warner Holding Co., 1946, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; see to the same effect Bowles v. Skaggs, 6 Cir., 1945, 151 F.2d 817; Creedon v. Randolph, 5 Cir., 1948, 165 F.2d 918. Where the Administrator (or his successor, the Housing Expediter) is also entitled to sue for statutory damages on behalf of the United States under § 205(e), he may join in a single complaint requests for appropriate relief both under '§ 205(a) and § 205(e).
It is apparent from the statutory scheme that the maximum liability contemplated by Congress, even of the most willful violator, was three times the amount of the overcharges. It would seem, therefore, that on a complaint filed by the Administrator, the. court would not have power to order restitution to the tenant in the amount of the overcharges as an incident of its equitable powers under § 205(a), and at the 'same time to give judgment to the Administrator, on behalf of the United States, for three times the amount of the overcharges. For this reason we think the Administrator probably was well-advised in asking the court to reduce his recovery of damages under § 205(e) to twice the amount of the overcharges in case the court should grant an order of restitution to the tenants under § 205(a). It might be objected that where the Administrator is entitled to sue for statutory damages under § 205(e), the Act provides that the whole of the recovery goes to the United States, and that therefore it would be improper to divert part of this recovery to,, the tenants in the guise of a restitution order under § 205(a), But if the result seems odd, it is still, we think, a logical consequence of the holding in Porter v. Warner Holding Co., 1946, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332.
Section-205(e) provided that the amount of damages awarded thereunder “shall be the. amount of the overcharge or overcharges if the defendant proves that the violation of the regulation, order, or price schedule in question was neither willful nor the result-.of failure to take practicable precautions against the occurrence of the violation.” Suppose the defendant had proved, to the satisfaction of the court that his violation was not.willful nor the result of failure to take practicable precautions. Might the court nevertheless have awarded judgment to the Administrator under § 205(e) in the amount of the overcharges, and at the same time, under § 205(a), have ordered restitution of the overcharges to the tenants? We doubt it very much, but the point need not be decided in the case at bar, since we have concluded that on the facts the .district court properly held that appellants had failed to prove that their violation of the regulation “was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.” As pointed out above, under the Act and the regulation, it was no longer lawful for appellants, after the Price Control. Extension Act of 1946 was approved, to continue to demand the $2 a week increase in rent which they had put into effect during the interregnum, period. Notwithstanding that the provision of law was unambiguous, and that appellants’ obligation thereunder was called to-their attention by local officials of the OPA shortly after the Extension Act was passed, they continued to denjand and receive the extra $2 a week from the tenants until restrained by interlocutory injunction on March 12, 1947.
Whether the $2 per week increase was-“reasonable” or not in relation to the rents generally prevailing for comparable housing accommodations on the maximum rent date was not properly an issue before the district court. Under the regulation the maximum rents for appellants’ apartments remained frozen at the rents which were being charged on March 1, 1942, unless and .until changed by order of the Administrator. Perhaps appellants might have been entitled to administrative .relief under one of the adjustment provisions of the regulation. At any rate they could have filed a protest against the regulation as applied to themselves, under § 203(a) of the Act. Jurisdiction to pass- upon the validity of the regulation was vested exclusively in the Emergency Court of Appeals by § 204(d) of the Act. The district court in the case at bar therefore properly rejected an offer Of proof by appellants that the freeze-datc rents “were abnormally low” and that the $2 per week increase brought the rents to a reasonable level in comparison to other rents for similar facilities in the area.
The judgments of the District Court are .affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Donald J. RUSSO, Appellant, v. UNITED STATES of America, Respondent.
No. 21857.
United States Court of Appeals Ninth Circuit.
March 6, 1968.
Rehearing Denied April 17, 1968.
George M. Sheets (argued), Tucson, Ariz., for appellant.
Jo Ann D. Diames (argued), Asst. U. S. Atty., Edward Davis, U. S. Atty., Tucson, Ariz., for appellee.
Before POPE, DUNIWAY and CARTER, Circuit Judges.
OPINION
JAMES M. CARTER, Circuit Judge.
Appellant was convicted in a trial without a jury, on three counts of an indictment. Count 1 charged a failure to pay the transfer tax on 208.4 grams of marihuana in violation of 26 U.S.C. Section 4741 and 4771; Count 2 charged receiving, concealing and facilitating the transportation and concealment of 2.6 grams of heroin; and Count 3 was a similar charge as to 11.3 grams of smoking opium. The latter two counts charged a violation of 21 U.S.C. Section 174. He was sentenced following conviction, to two years on Count 1 and five years on each of Count 2 and 3, the sentences to run concurrently.
THE FACTS
Considering the record in a light most favorable to the government, as we must on such an appeal, the facts were as follows:
A seizure of 125 lbs. of marihuana was made at the border at Nogales, Arizona port of entry on August 4th 1965. Customs agents Cameron and Washington were the investigating officers. One Charles Russo, a brother of appellant Donald Russo, accompanied by Carol his wife, was the driver of the car. He was arrested and advised of his constitutional rights by the officers. Agent Cameron told him that he “didn’t believe the load of marihuana was for his own use and didn’t believe he owned any part of it,” and asked why he “didn’t go ahead and deliver the marihuana to where he was supposed to.” Charles Russo said he “couldn’t do it and didn’t want to do it.” Agent Washington then said, “I believe you are going to deliver it to a relative or a brother.” Charles Russo replied, “That is right, my brother. I don’t want to get him in trouble but he has a hold on me and my wife and we do anything he tells us.” Charles Russo broke down and cried but refused to complete the delivery of the marihuana.
There followed some reports in the newspapers of the seizure on August 4, 1965, and on August 6, 1965, agent Cameron received a phone call from the manager of the El Rancho Motel in Tucson, Arizona. The manager stated he had read in the paper where a Charles Russo was arrested in Nogales, Arizona, with a large amount of marihuana. He stated further that a Russo and his wife had registered in his motel, and at the time of registering had told him that his brother and his wife would join them in the room some time later.
The officers then went to the commissioner, filed a complaint, secured a warrant of arrest and on the same day, August 6, 1965, proceeded to the room of Don Russo, the appellant, at the El Rancho Motel.
Officer Cameron knocked on the motel door, identified himself, was admitted by appellant, arrested him and his wife on the warrant. The agents then searched the motel room, the suit eases therein and found the contraband, which became the basis of the prosecution in this case.
THE SEARCH
The search of the motel room occupied by appellant and his wife, followed an arrest on a warrant. The warrant and the supporting complaint or affidavit is not a part of the record and we therefore assume it was a valid warrant of arrest. The fact the commissioner later found lack of probable cause to hold appellant on the original charge, does not affect the validity of the arrest warrant.
A search of the premises where an arrest occurs, pursuant to a lawful warrant, is a legal search. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).
Even if the warrant of arrest was illegal, which we do not find, probable cause will justify an arrest. Bell v. United States, 371 F.2d 35 (9 Cir. 1967); cert. den. 386 U.S. 1040, 87 S.Ct. 1498, 18 L.Ed.2d 608; Ferganchick v. United States, 374 F.2d 559 (9 Cir. 1967); cert. den. 387 U.S. 947, 87 S.Ct. 2085, 18 L.Ed.2d 1337; Hagans v. United States, 315 F.2d 67 (5 Cir. 1963); cert. den. 375 U.S. 826, 84 S.Ct. 68, 11 L.Ed.2d 58; United States v. Hall, 348 F.2d 837 (2 Cir. 1965); cert. den. 382 U.S. 947, 86 S.Ct. 408, 15 L.Ed.2d 355; and see Rocha, supra, note 1.
“Probable cause exists where 'the facts and circumstances within (the arresting officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
From the facts set forth above, there was probable cause to arrest appellant even if the warrant of arrest was illegal.
The search was lawful, the motion to suppress was properly denied and there was no error in the admission into evidence of the contraband seized during the search.
Entry into Motel Room
The Customs agents went to front and rear of the motel room occupied by appellant and his wife. Cameron rapped on the front door, the door was opened, he identified himself, stated he had a warrant for the arrest of appellant and his wife and was admitted by appellant. Washington was at the rear door. Hearing voices in the room he then entered the rear door with use of a pass key previously obtained from the motel operator. Cameron was already in the room.
If the first or a contemporaneous entry is lawful, a defendant cannot complain of unlawfulness in other later entries. Vanella v. United States, 371 F.2d 50, 58 (9 Cir. 1966); cert. den. 386 U.S. 920, 87 S.Ct. 883, 17 L.Ed.2d 790. Thus the entry into the motel by the officers was lawful.
Possession by the appellant of the contraband
Following the arrest, agent Washington found cigarette stubs later identified as marihuana in a small box on the night stand. The appellant, following his arrest, had been advised of his constitutional rights. The trial court found compliance with Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree.
Washington showed the box with the cigarette stubs to appellant and said, “What’s this ?” Appellant replied, “Marihuana. I smoke it. So what?”
Thereafter in one of two suit cases at the foot of the bed Washington found the contraband charged in Counts 1, 2 and 3, including 7.35 ounces of manicured marihuana (208.4 grams) charged in Count 1.
Appellant’s counsel concede personal belongings of appellant were in each of the two suit cases, including the one in which the 7.35 .ounces of marihuana was found.
Appellant’s statements that he smoked marihuana supports the inference that the 7.35 ounces found in a box in the suit case was his. In the same suit case and in the same box with the marihuana, was found also the heroin and opium, the basis of Count 2 and 3.
Contrary to appellant’s contention that there was no proof as to whether the contraband belonged to appellant or his wife, we conclude there was ample proof of appellant’s possession of the contraband.
The judgment of conviction is affirmed.
. See Rocha v. United States, 387 F.2d 1019, (9 Cir. 12/12/67) where a search warrant was issued and a magistrate suppressed the evidence. The court held that existing probable cause justified the search.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
NATIONAL LABOR RELATIONS BOARD v. ACTION AUTOMOTIVE, INC.
No. 83-1416.
Argued October 29, 1984
Decided February 19, 1985
Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist and O’Connor, JJ., joined, post, p. 499.
Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Wallace, Carter G. Phillips, and Linda Sher.
Stewart J. Katz argued the cause and filed a brief for respondent.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to decide whether the National Labor Relations Board may exclude from a collective-bargaining unit employees who are relatives of the owners of a closely held corporation that employs them, without a finding that the employees receive special job-related benefits.
I
Respondent Action Automotive, Inc., is a retail automobile parts and gasoline dealer with stores in a number of Michigan cities. Action Automotive is a closely held corporation owned equally by three brothers, Richard, Robert, and James Sabo. The Sabo brothers are actively involved in the daily operations of the business. They serve as the corporation’s officers, make all policy decisions, and retain ultimate authority for the supervision of every department.
In March 1981, the Retail Store Employees Union, Local 40 (the Union), filed with the Board a petition requesting that a representation election be held among Action Automotive’s employees. Action Automotive and the Union agreed to elections in two bargaining units — one consisting of employees at the company’s nine retail stores, and the other comprising clerical employees at the company’s headquarters. The elections were held on May 29, 1981, and the Union received a plurality of votes in each unit; enough ballots were challenged by each side, however, to place the outcome of the elections in doubt. We are concerned only with the Union’s challenge to the ballots of Diane and Mildred Sabo.
Diane Sabo is the wife of Action Automotive’s president and one-third owner, Richard Sabo. She works as a general ledger clerk at the company’s headquarters in Flint, Michigan. She resides with her husband and both work at the same office. Unlike other clerical workers, she works part time and receives a salary. She also is allowed to take breaks when she pleases, and she often spends her break in her husband’s office.
Mildred Sabo is the mother of the three Sabo brothers who own and manage Action Automotive. She is employed as a full-time cashier at the company’s store in Barton, Michigan. Mildred Sabo lives with James Sabo, secretary-treasurer of the corporation, and she regularly sees or telephones her other sons and their families. She earns 25 cents per hour more than any other cashier, but she is also one of the company’s most experienced cashiers.
In light of these facts, the Board’s hearing officer concluded that Diane Sabo’s interests are different from those of other clerical employees in the company’s headquarters, and that Mildred Sabo’s “interests are more closely aligned with management than with the employees of Action Automotive.” App. to Pet. for Cert. 36a. He reached this conclusion without finding that Diane and Mildred. Sabo enjoy special job-related benefits. Believing that such a finding was not a prerequisite to excluding the two women from the bargaining units, the hearing officer recommended that the Union’s challenge to their ballots be sustained.
The Board adopted the hearing officer’s recommendations and, after all qualified votes were counted, certified the Union as the exclusive bargaining representative for the two units. When Action Automotive refused to bargain, the Union filed charges with the Board. The Board, relying on its earlier certification decision, found that Action Automotive had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (Act), 61 Stat. 140, 141, 29 U. S. C. §§ 158(a)(1) and (5), and ordered the company to bargain with the Union. 262 N. L. R. B. 423 (1982).
The United States Court of Appeals for the Sixth Circuit denied enforcement of the Board’s order. 717 F. 2d 1033 (1983). The panel, apparently feeling bound by the Circuit’s prior decisions, see, e. g., NLRB v. Hubbard Co., 702 F. 2d 634 (1983), held that the Board had no authority under § 9(b) of the Act to exclude employees from a bargaining unit based solely on their close family relationship with those who own and operate the business. The court held that an employee’s family ties may be a factor justifying exclusion from a bargaining unit only “when the employee receive[s] job-related benefits or other favorable working conditions which flow from the relationship.” 717 F. 2d, at 1035. Under this standard, the court concluded that there was insufficient evidence that Diane and Mildred Sabo enjoy special job-related benefits, and that the Board erred in excluding them from the units.
The Sixth Circuit’s holding conflicts with the decisions of other Circuits and restricts the Board’s statutory authority to define bargaining units. We granted certiorari, 466 U. S. 970 (1984), and we reverse.
II
Section 9(b) of the Act vests in the Board authority to determine “the unit appropriate for the purposes of collective bargaining.” 61 Stat. 143, 29 U. S. C. § 159(b). The Board’s discretion in this area is broad, reflecting Congress’ recognition “of the need for flexibility in shaping the [bargaining] unit to the particular case.” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 134 (1944). The Board does not exercise this authority aimlessly; in defining bargaining units, its focus is on whether the employees share a “community of interest.” See South Prairie Construction Co. v. Operating Engineers, 425 U. S. 800, 805 (1976) (per curiam); 15 NLRB Ann. Rep. 39 (1950). A cohesive unit— one relatively free of conflicts of interest — serves the Act’s purpose of effective collective bargaining, Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 165 (1941), and prevents a minority interest group from being submerged in an overly large unit, Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 172-173 (1971).
The Board has long hesitated to include the relatives of management in bargaining units because “their interests are sufficiently distinguished from those of the other employees.” Louis Weinberg Associates, Inc., 13 N. L. R. B. 66, 69 (1939). From the earliest days of the Wagner Act, ch. 372, 49 Stat. 449 et seq., until 1953, the Board automatically excluded close relatives of a manager or owner of a closely held company. See, e. g., Jerry and Edythe Belanger, 32 N. L. R. B. 1276, 1279, and n. 4. (1941). This bright-line approach was abandoned, however, in International Metal Products Co., 107 N. L. R. B. 65, 67 (1953), and now the Board considers a variety of factors in deciding whether an employee’s familial ties are sufficient to align his interests with management and thus warrant his exclusion from a bargaining unit.
For instance, a relevant consideration is whether the employee resides with or is financially dependent on a relative who owns or manages the business; such an employee is typically excluded from the unit. See, e. g., Pandick Press Midwest, Inc., 251 N. L. R. B. 473, 473-474 (1980). The greater the family involvement in the ownership and management of the company, the more likely the employee-relative will be viewed as aligned with management and hence excluded. See factors listed in NLRB v. Caravelle Wood Products, Inc., 466 F. 2d 675, 679 (CA7 1972). The Board, of course, is always concerned with whether the employee receives special job-related benefits such as high wages or favorable working conditions. See, e. g., Holthouse Furniture Corp., 242 N. L. R. B. 414, 415-416 (1979). When other criteria satisfy the Board that the employee-relative’s interests are aligned with management, however, he may be excluded from the unit even though he enjoys no special job-related benefits. E. g., Marvin Witherow Trucking, 229 N. L. R. B. 412, 412-413 (1977).
Our review is limited to whether the Board’s practice of excluding some close relatives who do not enjoy special job-related benefits has a “reasonable basis in law.” NLRB v. Hearst Publications, Inc., supra, at 131. In reviewing Board decisions, we consistently yield to the Board’s reasonable interpretations and applications of the Act, see NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 829-830 (1984); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984). Indeed, the Board’s orders defining bargaining units are “rarely to be disturbed.” Packard Motor Car Co. v. NLRB, 330 U. S. 485, 491 (1947).
The Board’s policy regarding family members, although not defined by bright-line rules, is a reasonable application of its “community of interest” standard. Close relatives of management, particularly those who live with an owner or manager, are likely to “get a more attentive and sensitive ear to their day-to-day and long-range work concerns than would other employees.” Parisoff Drive-In Market, 201 N. L. R. B. 813, 814 (1973). And it is reasonable for the Board to assume that the family member who is significantly dependent on a member of management will tend to equate his personal interests with the business interests of the employer. Ibid. The very presence at union meetings of close relatives of management could tend to inhibit free expression of views and threaten the confidentiality of union attitudes and voting. See generally ibid.; NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 193-194 (1981) (POWELL, J., concurring in part and dissenting in part).
It can be argued that the Board’s policy is overbroad — that excluding from bargaining units only those family members who receive special job-related benefits adequately serves the Act’s objectives. However, we do not make labor policy under § 9(b); Congress vested that authority in the Board, which brings its extensive experience in the administration of the Act to bear on questions of unit determinations. See NLRB v. Hendricks County Rural Electric Membership Corp., supra, at 190; Packard Motor Car Co. v. NLRB, supra, at 492-493. We do not require “mathematical precision,” NLRB v. Hearst Publications, Inc., supra, at 133, and are not prepared to second-guess the Board’s informed judgment that a bargaining unit’s community of interest may be diluted by circumstances other than divergent job-related benefits.
The Board’s decision to exclude some family members is not inconsistent with the fundamental structure or policies of the Act. Congress knows how to limit the Board’s discretion to define collective-bargaining units. For example, § 9(c)(5) of the Act states that “the extent to which the employees have organized shall not be controlling” in determining whether a unit is appropriate. 29 U. S. C. § 159(c)(5). By contrast, there is no express direction that the Board define bargaining units only by reference to job-related benefits such as wages and working conditions. We are not authorized to bind the Board in ways not mandated by Congress.
Action Automotive’s extensive reliance on § 2(3) of the Act is misplaced. Section 2(3) excludes from the Act’s definition of “employee” “any individual employed by his parent or spouse.” 61 Stat. 138, 29 U. S. C. § 152(3). Such a person is completely outside the scope of the statute and may not invoke its protection. See, e. g., Campbell-Harris Electric, Inc., 263 N. L. R. B. 1143, 1143-1144, enf’d, 719 F. 2d 292 (CA8 1983). Family members who fall within the Act’s broad definition of “employee,” however, have no statutory right to be included in collective-bargaining units under § 9(b). The Board is free to exclude from bargaining units persons who are statutory “employees” otherwise protected by the Act. See, e. g., Hendricks County Rural Electric Membership Corp., supra, at 190.
Nor does the Board’s policy of excluding close relatives of management without a showing of special job-related benefits run afoul of the Act’s mandate that the Board remain “wholly neutral” as between the contending parties in representation elections, see NLRB v. Savair Mfg. Co., 414 U. S. 270, 278 (1973). Strictly speaking, the Board does not exclude a family member from a bargaining unit because he is likely to vote against the union. Rather the family member is excluded, if at all, because the Board determines on the basis of objective factors that he lacks common interests with fellow employees who are not so related. In some cases the Board’s policy may have the effect of favoring union representation; however, a disparate impact does not violate the principle of neutrality. Indeed, virtually every Board decision concerning an appropriate bargaining unit — e. g., the proper size of the unit — favors one side or the other.
The Board, in applying its general policy to the facts of this case, did not abuse its discretion. Diane Sabo resides with her husband, the president and one-third owner of Action Automotive; Mildred Sabo, the mother of the three owners, lives with one of her sons. All three owners are closely related and actively involved in running the business on a day-to-day basis. Diane Sabo works at the same office with her husband and occasionally takes her coffeebreaks in his office. Mildred Sabo has daily contacts with her sons. Certainly their participation in the collective-bargaining units would be viewed with suspicion by other employees. On these facts, the Board could reasonably conclude that Diane and Mildred Sabo’s interests are more likely to be aligned with the business interests of the family than with the interests of the employees.
We hold that the Board did not exceed its authority in excluding from collective-bargaining units close relatives of management, without a finding that the relatives enjoy special job-related privileges. The judgment of the Court of Appeals is
Reversed.
The vote in the unit consisting of retail store employees was 20-18; the vote in the clerical unit was 4-3.
The Board, disagreeing with the hearing officer, found that Diane Sabo does enjoy special job-related benefits. The Court of Appeals for the Sixth Circuit set aside this finding, and the Board, for purposes of review in this Court, no longer rests its decision on this ground.
See NLRB v. H. M. Patterson & Son, Inc., 636 F. 2d 1014 (CA5 1981); Linn Gear Co. v. NLRB, 608 F. 2d 791 (CA9 1979); NLRB v. Caravelle Wood Products, Inc., 504 F. 2d 1181 (CA7 1974).
The Board’s policy is not undermined by the fact that it has modified and refined its position; an agency’s day-to-day experience with problems is bound to lead to adjustments. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 294-295 (1974).
Compare Parisoff Drive-In Market, Inc., 201 N. L. R. B. 813 (1973) (excluding children of corporation’s vice president and significant shareholder), with Pargas of Crescent City, Inc., 194 N. L. R. B. 616 (1971) (including wife of local manager with no ownership interest).
At least since International Metal Products Co., 107 N. L. R. B. 65 (1953), the Board has not excluded an employee simply because he was related to a member of management.
In the context of corporations, the Board has limited the § 2(3) exclusion to the children or spouses of an individual with at least a 50% ownership interest. See Cerni Motor Sales, Inc., 201 N. L. R. B. 918 (1973). The Board’s decision in this case, therefore, is not premised on the view that Diane and Mildred Sabo are not “employees” within the meaning of § 2(3).
The Court of Appeals implicitly recognized as much by noting that employee-relatives may be excluded from a unit if they receive job-related privileges.
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_respond1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Charles W. MABRA, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee.
No. 74-1690.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 1975.
Decided July 3, 1975.
Rehearing Denied Aug. 11, 1975.
Charles F. Crutchfield, Dennis Mulshine, law student, Notre Dame Law School, Notre Dame, Ind., Joseph P. Bauer, Notre Dame, Ind., for petitioner-appellant.
William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before CUMMINGS, STEVENS and TONE, Circuit Judges.
STEVENS, Circuit Judge.
The question presented is whether appellant’s Fourth Amendment rights were violated by a custodial search of his wife’s purse and person. Currency, identified as the proceeds of a tavern holdup allegedly committed by appellant Mabra, was obtained during the search.
The appeal is from the denial of a petition for a writ of habeas corpus; appellant’s conviction of armed robbery while masked and first degree murder had previously been affirmed by the Wisconsin Supreme Court. State v. Mabra, 61 Wis.2d 613, 213 N.W.2d 545 (1974). Mabra and his wife were apprehended about four hours after the crime, the police investigation having revealed that Mrs. Mabra had borrowed the getaway car from her brother that morning and had not yet returned it. After what was apparently a cursory search for weapons at the time of arrest, Mr. and Mrs. Mabra were taken to the police station in separate vehicles. Thereafter a custodial search of Mrs. Mabra’s purse revealed $40.20, including sixteen $1 bills and the balance in change; a search of her person disclosed an additional $539 in currency; this evidence was admitted over objection at Mabra’s trial. On appeal from the denial of a motion for a new trial, the state Supreme Court held that Mabra had standing to challenge the validity of the search but that since Mrs. Mabra’s arrest was supported by probable cause, the search was proper.
As a matter of federal law, appellant may not assert an alleged violation of his wife’s Fourth Amendment rights as a basis for suppressing the evidence taken from her person. Alderman v. United States, 394 U.S. 165, 171-175, 89 S.Ct. 961, 22 L.Ed.2d 176; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697. Appellant argues that his rights were violated because the search of his wife was intended to uncover evidence that could be used against him; therefore, in the language used by Mr. Justice Frankfurter for the Court in Jones, he was “one against whom the search was directed.” 362 U.S. at 261, 80 S.Ct. at 731.
We may assume, even though the record is unclear on the point, that the police hoped to find evidence tending to incriminate Mabra when they searched his wife. Nevertheless, apart from that hope, they had two legitimate reasons for searching her that did not concern him. First, in connection with temporary incarceration at the police station, routine procedure includes a search to determine whether weapons or other dangerous instrumentalities are being brought inside. Second, since the police knew that Mrs. Mabra had procured the getaway car, they had reason to believe that she was involved in the robbery herself. Thus, if the search was designed to obtain evidence relating to the robbery, it was reasonable to expect that such evidence would be used against her. It is not accurate, therefore, to characterize the search as directed against her husband.
This is not a case in which Mabra can argue that there was an illegal invasion of his wife’s privacy for the sole purpose of obtaining evidence against him. We therefore need not squarely hold that he would not have standing to challenge the search in such circumstances, although we note respectable authority for a reading of the phrase “one against whom the search was directed” as merely another way of describing “a victim of a search or seizure,” rather than as an additional category of persons having standing to make the Fourth Amendment objection. See especially Chief Judge Murrah’s opinion in Sumrall v. United States, 382 F.2d 651, 654-655 (10th Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853, a case remarkably similar to this one on its facts. See also W. White & R. Greenspan, “Standing to Object to Search and Seizure,” 118 U.Pa.L.Rev. 333, 346-348 & n. 81 (1970). But see Judge Swygert’s concurring opinion in United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975).
M Neither the custodial search of Mrs. Mabra, nor the seizure from her person of the proceeds of the armed robbery violated Mabra’s Fourth Amendment rights. Cf. United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975). Accordingly, as a matter of federal law, he had no right to object to the admissibility of that evidence.
. Appellant’s counsel has correctly pointed out that a number of states have held that the deterrent purpose of the exclusionary rule justifies a defendant’s vicarious reliance on a violation of another person’s Fourth Amendment rights as a basis for objecting to the admissibility of illegally seized evidence. The leading case is Judge Traynor’s opinion in People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955). See also Wing v. State, 490 P.2d 1376 (Okl.Cr.App.1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119. The Wisconsin Supreme Court also noted that the Model Code of PreArraignment Procedure, Official Draft No. 1, recommended by the American Law Institute on July 15, 1972, has recommended that the existing standing rules be relaxed to accord standing to a spouse of the person searched. See 61 Wis.2d at 621-622 n. 4, 213 N.W.2d 545. However, we are, of course, bound by the decisions of the United States Supreme Court; and it is perfectly clear that in a collateral attack on a state conviction, a federal court may only consider alleged violations of the petitioner’s federal constitutional rights as a basis for relief.
. The relevant sentence in Mr. Justice Frankfurter’s opinion reads as follows:
“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
362 U.S. at 261, 80 S.Ct. at 731. The descriptions of (1) “a victim of a search”, and (2) “one against whom the search was directed” may be read as appositive.
. Nor do we believe there is any merit to Ma-bra’s contention that he was denied due process by the failure of the prosecutor to specify in the information which of the three paragraphs in Wis.Stat. § 939.05(2) (Parties to Crime) he was relying upon. State v. Cydzik, 60 Wis.2d 683, 688, 211 N.W.2d 421, 425 (1973).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
songer_usc2
|
49
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 49. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
CENTRAL FORWARDING, INC. and Household Goods Carriers’ Bureau, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. EASTERN LABOR ADVISORY ASSOCIATION and Southern Tank Line Carriers, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. DRUG AND TOILET PREPARATION TRAFFIC CONFERENCE, INC. and the National Small Shipments Traffic Conference, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 81-4437, 81-4493 and 82-4019.
United States Court of Appeals, Fifth Circuit.
Feb. 28, 1983.
Opinion on Denial of Rehearing May 13, 1983.
John R. Sims, Jr., Dennis Dean Kirk, Washington, D.C., for intervenor Specialized Carriers.
Thomas M. Auchincloss, Jr., Leo C. Franey, Washington, D.C., for petitioners in No. 81 — 4437 and intervenor Steel Carriers’ Tariff Ass’n.
Leonard A. Jaskiewicz, Edward J. Kiley, Washington, D.C., for intervenor Carrier Conference-Irregular Route.
Robert E. Born, Atlanta, Ga., for intervenor National Ass’n of Specialized Carriers, Inc.
Kenneth P. Kolson, John J. Powers, III, Dept, of Justice, Kathleen V. Gunning, I.C.C., Washington, D.C., for respondents.
Keith G. O’Brien, Washington, D.C., for intervenor Intern. Broth, of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Donelan, Cleary, Wood & Maser, P.C., Frederic L. Wood, Washington, D.C., for intervenor American Frozen Food Institute.
Robert J. Bray, Jr., James J. Wankmiller, John J. McAleese, Jr., Bala Cynwyd, Pa., for amici curiae Southern Tank Line Carriers and Eastern Labor Advisory Ass’n.
John F. Wickes, Jr., Indianapolis, Ind., for amicus curiae Ferree Furniture Exp., Inc.
David E. Driggers, Denver, Colo., for amicus curiae Transystems, Inc., et al.
James D. Porterfield, Pittsburgh, Pa., for amicus curiae Pittsburgh & New England Trucking Co.
Paul D. Angenend, Austin, Tex., for amicus curiae Acme Truck Line, Inc.
Jerry Prestridge, Austin, Tex., for amicus curiae Oil Field Haulers Ass’n, Inc.
Daniel J. Sweeney, Washington, D.C., for petitioners in No. 82-4019.
Before GARZA, REAVLEY and GAR-WOOD, Circuit Judges.
REAVLEY, Circuit Judge:
These consolidated appeals challenge an Interstate Commerce Commission regulation requiring carriers to reimburse owner-operators for a portion of their fuel costs. Having concluded that the Commission exceeded its statutory authority, we set aside the regulation, suspending the effectiveness of our decision for 60 days following the date of issuance of the mandate, and remand to the Commission in order that the parties may accordingly seek leasing agreements and adjustment of rates. Although our ultimate holding is a narrow one, constrained by particular circumstances, we reach it through a broad inquiry into the rulemaking authority of the Interstate Commerce Commission, and agency rule-making in general. We write with an awareness of the importance of the case to the parties in this and future disputes.
I. BACKGROUND
The regulation in question is Ex Parte No. 311 (Sub-No. 4), Modification of The Motor Carrier Fuel Surcharge Program, 46 Fed.Reg. 50070, 365 I.C.C. 311 (served October 8, 1981) (“the regulation”). Understanding its purpose and effects requires some knowledge of industry practices and the recent history of regulation in the motor carrier field.
A. The Parties
The private parties to this suit represent the three principal segments of the regulated motor carrier industry: carriers, owner-operators, and shippers.
Under existing federal law, most forms of interstate for-hire motor transportation require operating authority from the Interstate Commerce Commission (“ICC” or “Commission”). The Commission extends operating authority through licenses known as contract carrier permits or common carrier certificates of public convenience and necessity. Carriers, as that term is used here, are parties possessing such a license. Owner-operators are the “independent truckers” of song and legend. They are persons owning one or a few trucks who lack ICC operating authority. Since they cannot transport regulated commodities in interstate commerce in their own right, they rely on two sources of business: (1) they lease their services and equipment to a carrier in order to utilize the carrier’s operating authority, or (2) they make hauls exempt from ICC regulation by transporting agricultural products (49 U.S.C. § 10526), working for a private fleet (49 U.S.C. § 10524), transporting goods intrastate (49 U.S.C. § 10525), etc. Shippers, finally, are the customers of the industry — retailers, manufacturers and others — who have goods to be transported.
In order to haul regulated commodities an owner-operator leases his truck to a carrier, who then hires the owner-operator to drive the truck. These lease arrangements are common, as independent owner-operators account for approximately 40 percent of all intercity truck traffic in this country. H. R.Rep. No. 1812, 95th Cong., 2d Sess. 5 (1978). Typically, in exchange for extending his operating authority and providing a few other services such as advertising, the carrier takes 25 percent of the gross revenue from the haul, leaving 75 percent to the owner-operator, who bears all of the costs of carrying the freight, including fuel, repairs, tolls and the like. Id. at 5-6. The lease terms vary, but the 75-25 split is very common in industry practice. The ordinary duration of the lease is from three months to one year. D. Wyckoff & D. Maister, The Owner-Operator: Independent Trucker 85 (1975). While most owner-operators are independent contractors, some are classified as employees under the national labor laws and are represented by unions.
B. Genesis of the Regulation
The current regulation is the latest in a series of actions taken by the ICC related to fuel costs. The dizzying increase in fuel prices associated with the OPEC oil embargo of 1973 had a severe impact on the trucking industry, and was in part responsible for owner-operator shutdowns in 1973-74.
The Commission took a number of actions in response to the new pace of fuel-price inflation. In Ex Parte No. 311, Expedited Procedures for Recovery of Fuel Costs, 350 I.C.C. 563 (1975), it established an expedited procedure for regulated carriers to reflect rapidly rising fuel costs in their rates in the event of a future fuel crisis. The Commission entered Special Permission No. 76-350, allowing carriers to increase rates on 10 days’ notice instead of the usual 30 days’ notice.
In the meantime, congressional hearings were initiated at various locations around the country to learn more about owner-operators and their problems. Some of the hearings are published in Regulatory Problems of the Independent Owner-Operator in the Nation's Trucking Industry: Hearings Before the Subcomm. on Activities of Regulatory Agencies of the House Comm, on Small Business: Parts I, II, III, 95th Cong., 2d Sess. (1976-78). The Commission in this case relies on a passage from the House report summarizing the findings of these hearings:
From the monies actually received (75 percent or less of the shipping rate) the owner-operator must pay for his own licensing, operation and gas tax permits which vary widely from state to state. They must also pay for the full cost of regular maintenance plus the monthly payment on his tractor and trailer which runs, on the average, of 12 to 18y2 percent interest on a 4-year plan which often is the only credit term available to him. When one recalls that the owner-operator is unable to pass on these expenses to his customer, the gravity of this problem is apparent.
The owner-operator cannot increase his income since it is fixed first by the rate charged for shipping by the carrier and secondly by his 75/25 leasing agreement with the carrier. There is little incentive for the carrier to raise rates because of the competition between licensed carriers. This is especially true, it is remembered, since the carrier gets 25 percent off the top for granting the privilege to work to the independent owner-operator. This added income provides additional income to the carrier. A carrier can lessen the cost squeeze on his rates by giving to a leased operator the same load for 75 percent of the rate and forcing the leasor [sic] to assume all costs.
The owner-operator is caught in a continuing cost crunch. His costs — fuel, lubricants, tires, overnight accommodations, etc. — continue to rise while his income remains inflexible. He is trapped by the regulatory system. If he were able to carry the same load for the full rate, he would be able to compete successfully within the system.
H.R.Rep. No. 1812, 95th Cong., 2d Sess. 6-7 (1978).
The spring of 1979 saw another dramatic rise in fuel prices that cut heavily into owner-operator incomes, resulting in more shutdowns that summer. Since most owner-operators paid their own fuel costs, their expenses were rising rapidly, while their revenue was fixed by previous lease agreements and by rates that could only be changed if carriers sought rate increases. The Commission adopted temporary measures to cope with the problems facing carriers and owner-operators.
On June 1, 1979, Special Permission No. 2620 was issued, allowing carriers to file for fuel-related rate increases in surcharge form on ten days’ notice, but requiring the full amount of the surcharge to be passed through to owner-operators that actually paid for the fuel. This measure proved inadequate because many carriers chose not to file for the surcharge or did not file quickly enough to satisfy owner-operators.
On June 15, 1979, the Commission adopted Special Permission No. 79-2800, establishing an average fuel rate increase for the nation, and allowing carriers to file for this average increase in surcharge form on one day’s notice. The surcharge was based in part on a national average of the ratio of the owner-operator’s fuel expenses to total operating revenue, and became known as the “revenue-based” surcharge. It was in effect until the latest regulation replaced it. One key element of this procedure was that regardless of whether the carrier took the full surcharge, it was required to pass through the maximum allowed surcharge to owner-operators. By its own language Special Permission No. 79-2800 was a response to a situation of “extreme urgency” in which “fuel prices are increasing at an alarming rate.” It went on to note that “[bjecause of the extreme nature of the emergency, the Commission finds that it must order that all regulated carriers, whether or not they have taken an X-311 increase, must from this date forward compensate owner-operators fully for all additional fuel expenses incurred by these operators.”
Thereafter, on a weekly basis, the Commission continued to prescribe successively higher fuel surcharges, relating them to a weekly fuel price index using the January 1, 1979 diesel fuel price of 63.5 cents per gallon as a base.
The surcharge program, an emergency scheme enacted in a time of rapidly escalating fuel prices and labor strikes, ultimately created distortions in the rate structure and did not accurately reflect fuel costs. Recognizing that “[t]he surcharge program is intended to be temporary,” the Commission initiated Ex Parte No. 311 (Sub-No. 4), Review of the Motor Carrier Fuel Surcharge Program, in a notice of proposed rulemaking served on April 11, 1980. The Commission proposed four modifications in the program and requested comments. After reviewing comments and holding hearings, it proposed a fifth modification in a notice served on July 31, 1981.
After receiving several hundred comments and hearing oral argument on the five options, the Commission adopted the current regulation, which replaces the revenue-based surcharge with a plan requiring carriers to compensate owner-operators based on a cents-per-mile formula. The regulation froze the percentage of revenue surcharge and allowed carriers to fold the amount of the surcharge into their rate structure.
Unlike its predecessors, the current regulation cannot be described as an emergency measure. It was adopted some eighteen months after the initial notice of proposed rulemaking, and was not adopted in a time of national labor unrest. Fuel prices were relatively stable as well, for the July 31 notice indicated that “[sjurcharges have been employed only in exigent circumstances such as the fuel crisis which began in the spring of 1979. The circumstances which led to the adoption of the surcharge program no longer exist. Petroleum supplies are ample at present and the price of fuel is now relatively stable.”
Furthermore, the regulatory pressures contributing to the plight of the owner-operator had eased since the time they were recognized by Congress in the hearings that ended in 1978. The Motor Carrier Act of 1980 made it much easier for an owner-operator to become a carrier himself and avoid having to pay carriers for license privileges. Section 5 of the Act substantially lessens the burden on would-be applicants for certificates of public convenience and necessity under 49 U.S.C. § 10922. See H.Rep. No. 1069, 96th Cong., 2d Sess. 12-17, reprinted in 1980 U.S.Code Cong. & Ad. News 2283, 2294-99. The new standard has been applied very liberally in favor of applicants. “During the first year of implementing the Motor Carrier Act of 1980, some 27,000 opposed motor carrier operating rights cases were decided by the ICC. In not a single case did the Commission conclude that the protestant had satisfied its statutory burden of proving that the proposed operations were inconsistent with the public convenience and necessity.” Dempsey, Congressional Intent and Agency Discretion — Never the Twain Shall Meet: The Motor Carrier Act of 1980, 58 Chi.Kent L.Rev. 1, 40 (1981).
C. The Regulation
The regulation, served on October 8,1981, phased out the existing surcharge program and replaced it with a reimbursement plan requiring carriers to reimburse owner-operators on a mileage basis. The rate of reimbursement, initially set at 14 cents per mile, is designed to assure that owner-operators are compensated for all fuel costs above 63.5 cents a gallon incurred while on carrier business. As an option, carriers can avoid the mileage compensation system by providing owner-operators with fuel or credit cards, so that the carrier absorbs all actual costs for fuel above 63.5 cents per gallon. Carriers are provided a means of obtaining a rate increase to offset increased fuel expenses.
Language from the regulation itself best explains its effect. “In establishing current standards for the recovery of fuel increases, the Commission has, in essence, affected one distinct element of the owner-operator’s compensation.” The Commission has overridden privately negotiated payment arrangements between carriers and owner-operators. “The fuel reimbursement plan delineated in this decision in effect separates owner-operator compensation for fuel costs in excess of 63.5 cents a gallon from the lease agreement.” The mileage reimbursement must be paid regardless of the terms of the lease. Furthermore, although the regulation allows changes in the base rate on which the revenue split is made under the lease to prevent double compensation, it forbids change's in leases designed to counteract the effects of the reimbursement plan. “We admonish carriers not to adjust the revenue split in the lease agreement to deprive owner-operators of payments required pursuant to the Commission’s compensation method.” Because of a perceived lack of bargaining power, the Commission concluded “that owner-operators require a measure of protection in this area and that separate agreements will not accomplish this goal.”
The regulation contemplates an ongoing reimbursement plan. For the indefinite future the mandated mileage compensation will be adjusted up or down as fuel prices dictate. The Commission has placed no limits on its power to rethink or recalculate its fuel reimbursement formula in the future, and has thus empowered itself to control compensation in the industry as it wishes.
D. Summary of Factual Circumstances
We decide this case based on the particular circumstances before us. Two key conclusions emerge from the background discussion given above.
First, the stated purpose and actual effect of Ex Parte No. 311 (Sub-No. 4) is to regulate directly compensation paid by carriers to owner-operators. The Commission is not satisfied with leaving compensation in the trucking industry to the private or collective bargaining that reigns throughout most of the American economy, because it believes that owner-operators are victims of inadequate bargaining power and inflexible leases. The fact that the compensation formula is keyed to fuel costs is of little moment, for if this regulation is valid, we fail to see how any other compensation requirement would not also be valid.
Second, this regulation cannot be described as an emergency or stop-gap measure designed to respond to a national or industry-wide crisis. It was adopted after lengthy rulemaking proceedings. There were no fuel or regulatory emergencies facing owner-operators in October of 1981, nor can the agency’s action be attributed to the immediate threat of a strike or other labor unrest. The regulation is not a temporary measure, but instead purports to regulate compensation on a permanent basis.
The authority of the Commission and the validity of this regulation must be determined with these factual circumstances in mind.
E. Issues on Appeal
The appeals come to us under 28 U.S.C. §§ 2342(5) (circuit court review of ICC regulation) and 2112(a) (transfer from other circuits). The regulation is the product of informal rulemaking under section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, and is subject to review under section 10 of the Act, 5 U.S.C. § 706(2)(A)-(D):
The reviewing court shall . .. hold unlawful and set aside agency action ... found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law ....
Not surprisingly, the twenty-seven original parties, intervenors and amici curiae have managed to find fault with and defend the regulation under each of these subsections. Those opposing the action taken by the ICC claim, for reasons too numerous to mention here, that the regulation is arbitrary and capricious, that it unconstitutionally impairs existing contracts, that it impermissibly intrudes on the jurisdiction of the National Labor Relations Board in conflict with Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and that inadequate notice of the agency’s action was given. Without reaching these arguments, we find that under subsection (C) the regulation is beyond the statutory authority granted to the Commission by Congress.
II. COMMISSION AUTHORITY
No one can doubt that Congress could regulate compensation levels in the trucking industry under its sweeping power to regulate interstate commerce. Nor is there doubt that Congress could delegate that power to the Commission. The question before us is not whether Congress can delegate such authority, but whether it has chosen to do so — a matter of statutory construction by and large. In answering this ultimate question we find it helpful to ask a number of subsidiary questions, all of which shed light on the bounds of an agency’s authority: (1) how broadly has Congress granted rulemaking authority to the agency; (2) how closely related to specific delegations of power is the regulation in question; (3) how dramatically does the regulation affect the private parties at which it is aimed?
These three subsidiary questions are not etched in stone, and are not intended to serve as an exhaustive list of factors that courts are obliged to examine in all disputes concerning rulemaking authority. They do, however, offer some clues of congressional intent if fairly answered.
The first two questions are self-evident in their aim. Obviously, if an agency has been granted sweeping powers, and if the regulation at issue clearly falls within the rule-making prerogatives expressly granted by statute, the court should not hesitate to conclude that Congress has authorized the regulation. On the other hand, if Congress has granted only limited powers to the agency, and the regulation bears little kinship to the rulemaking authority expressed by statute, the validity of the regulation is suspect. These two questions are easier to ask than to answer, and we address them concurrently in the remaining parts of this opinion.
The third question is not so obvious in its aim and we address it here. An inquiry into how dramatically a regulation affects the parties at which it is directed can rarely be answered precisely, and the parties themselves will usually disagree on the regulation’s impact. The reviewing court can do little more than give a gestalt reaction to the question. Nevertheless, we are convinced that the more profoundly an agency’s actions affect private parties, the more likely it is that Congress would disapprove of the action absent a clear and specific authorization by statute.
By any standard Ex Parte No. 311 (Sub-No. 4), despite its unpretentious name, asserts an awesome power over the motor carrier industry. It cannot be described as a mere procedural or housekeeping rule, nor is it a measure aimed at simply promoting or policing fair dealings among private parties. Instead it removes from the control of these parties their private determination of .one aspect of their leasing arrangements, and in effect rewrites each private agreement, to the benefit of one party and the chagrin of the other. The regulation affects tens of thousands of private parties by requiring out-of-pocket reimbursements of hundreds of millions of dollars. By directly regulating private sector compensation, the Commission has taken upon itself a task that Congress does not frequently delegate.
The Government suggests that the Commission’s regulations governing fuel cost reimbursements have been promulgated in response to congressional concern about the “cost crunch” that owner-operators have experienced in recent years. As explained above, the current regulation was promulgated several years after this concern was stated, and the regulatory constraints and fuel-price inflation that prompted the concern had subsided. Regardless, we cannot accept any suggestion that the regulation is valid because it is aimed at an evil perceived by Congress, for here the argument cuts both ways. Nothing in the legislative history suggests that Congress thought the Commission had the power to act directly on owner-operator compensation. If it be asked why, then, Congress did not itself attack the problem by specific legislation, the response is that the fact that Congress recognized a problem but chose not to act directly suggests that it would as likely disapprove as approve of the Commission’s frontal attack on the problem.
In this instance Congress has expressed considerable concern about the plight of owner-operators, and has not hesitated to enact legislation in their favor. However, Congress has never specifically authorized the Commission to require fuel reimbursements to owner-operators or to otherwise directly regulate compensation paid to owner-operators. If the Commission has this authority, it does not exist by virtue of congressional hearings and reports alone. If such power exists it is to be found by examining enacted statutes, a task to which we now turn.
The petitioners would have us strike down any regulation of leasing practices between carriers and owner-operators that is not specifically authorized by statute. The respondents would have us uphold any agency action that has a rational basis, that does not contravene any express statutory mandate, and that does not impermissibly interfere with the jurisdiction of another agency. The truth, we think, lies somewhere in between.
A. General Rulemaking Authority
The Commission contends that it had authority to promulgate the regulation under the general rulemaking authority found in 49 U.S.C. § 10321(a), which provides:
The Interstate Commerce Commission shall carry out this subtitle. Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle. The Commission may prescribe regulations in carrying out this subtitle.
Removed from its statutory and historical context, this provision is practically devoid of meaning, and offers little help in determining whether the Commission is authorized to regulate compensation paid in motor transportation leasing agreements.
As a preliminary approach to construing the scope of this provision, we note that it is the product of the Revised Interstate Commerce Act of 1978. The purpose of this Act was to rewrite the Interstate Commerce Act in modern prose without effecting any substantive changes in the law. The Act succeeds admirably at simplifying the stodgy language of the previous Interstate Commerce Act, but the previous statutes, perhaps because of their baroque prose, give a better feel for the scope of ICC authority than their terse replacement. We have examined these earlier statutes, reproduced in the margin for the avid reader, and find that they give no mention of ICC authority to regulate owner-operator compensation.
Our inquiry does not end simply by noting that the general rulemaking provision does not single out owner-operator leasing and compensation arrangements as subjects for ICC regulation. In the leading case of American Trucking Associations v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953) (“ATA”), the Supreme Court held that the ICC could regulate certain leasing practices between carriers and owner-operators despite the lack of any express delegation of power under the Interstate Commerce Act (“Act”). The respondents rely on language from the case where the Court found that “[o]ur function, however, does not stop with a section-by-section search for the phrase ‘regulation of leasing practices’ among the literal words of the statutory provisions.” 344 U.S. at 309, 73 S.Ct. at 314, 97 L.Ed. at 355. Despite this language, we do not read the case as granting carte blanche to the Commission over leasing practices.
The Commission rules reviewed in ATA required that contracts between owner-operators and carriers be reduced to writing, vest control of the equipment in the carrier, exceed thirty days in length, and fix the compensation of the owner-operator by a manner other than a percentage of the gross revenue. The rules also required inspection of the non-owned equipment by the carrier, testing of the driver’s familiarity with Motor Carrier Safety Regulations, and records on the use of equipment. The effect of the rules was to abolish a practice known as “trip leasing.”
The rules were justified as necessary to preserve the express statutory mandates of the Act. Trip leasing was found to encourage violation of statutory safety requirements and limitations on certified authority, and the statutory mandate to provide nondiscriminatory service. The Court also found that the use of leased equipment tended to obstruct normal rate regulation. It found that numerous statutory provisions of the Act were in jeopardy, including sections 216(b) and 218(a) (rate regulation), 204(a)(2) (safety requirements), 204(a)(1) (continuous service), 208(a) and 209(b) (observance of authorized routes and termini), and 216(d), 217(b), 218(a) and 222(c) (prohibition of rebates), and concluded that “practically the entire regulatory scheme is affected by trip leasing.” 344 U.S. at 310-12, 73 S.Ct. at 315, 97 L.Ed. at 355-57.
Under such circumstances, the Commission was held to have the authority to enforce the provisions of the Act under its general rulemaking authority found in section 204(a)(6). However, we read ATA as interpreting the general rulemaking provision to be a limited grant of authority to the Commission to carry out and enforce the express mandates of the Act. The Court did not find the provision to be a grant of power to regulate all aspects of the motor carrier industry, but instead found that “as exercised, the power under § 204(a)(6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements.” 344 U.S. at 313, 73 S.Ct. at 316, 97 L.Ed. at 357.
Other Supreme Court precedents are consistent with this view. In Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court upheld the authority of the Federal Reserve Board to promulgate the “Four Installment Rule” found in Regulation Z. Such authority was found to exist under the general rulemaking provision of the Truth in Lending Act, 15 U.S.C. § 1604(a) which provides:
The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain ... provisions ... as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.
In broad language the Court states:
Where the empowering provision of a statute states simply that the agency may “make ... such rules and regulations as may be necessary to carry out the provisions of this Act,” we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.”
411 U.S. at 369, 93 S.Ct. at 1660-61, 36 L.Ed.2d at 329-30. The opinion is clear, however, in recognizing that the regulation was aimed at carrying out specific statutory mandates requiring merchants to indicate the amount and rate of finance charges, 15 U.S.C. § 1638, and aimed at avoiding the uninformed use of credit by consumers, 15 U.S.C. § 1601. As in ATA, the Court found the regulation to be designed to enforce these express mandates:
Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board’s authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware.
411 U.S. at 371, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
Similarly, the Court in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) found that the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 1938 to prohibit companies from allowing or requiring their employees to do industrial homework. Speaking of the Gemsco case, the Mourning Court said:
The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, § 8(f) stated that the Administrator’s orders
“shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.”
[52 Stat. 1065 (1938)]. After hearings, the Administrator determined that homework furnished “a ready means” of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable.
411 U.S. at 370, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
None of these cases suggests that general rulemaking authority empowers an agency — established to enforce and carry out a congressional act — to promulgate regulations which run far afield from the specific substantive provisions of the act. Our reading of ATA and related cases is that a general rulemaking provision should be read as a kind of necessary and proper clause. It grants considerable powers to enforce the substantive mandates of federal law governing interstate motor transportation, but is tied to and limited by those specific substantive provisions. It does not open whole new horizons on the regulatory landscape. Congress has not delegated wholesale control of all affairs of motor carriers to the Commission, and it would require more than the language of 49 U.S.C. § 10321(a) to warrant a construction of the Act to that effect.
Statutory pronouncements subsequent to ATA strongly enforce a state of the law in accord with our reading of ATA. The Motor Carrier Act of 1980 enacts numerous and important changes in the law regulating interstate motor transportation, and represents a shift in attitude on the role of government, and particularly the ICC, in regulating that industry. Section 2 of the Act, 49 U.S.C. § 10101 note, 94 Stat. 793 (1980) gives its purpose: “This Act is part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government.” Section 3(a) of the Act, id., gives the congressional findings prompting the legislation:
The Congress hereby finds that a safe, sound, competitive, and fuel efficient motor carrier system is vital to the maintenance of a strong national economy and a strong national defense; that the statutes governing Federal regulation of the motor carrier industry are outdated and must be revised to reflect the transportation needs and realities of the 1980’s; that historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry; that protective regulation has resulted in some operating inefficiencies and some anticompetitive pricing; that in order to reduce the uncertainty felt by the Nation’s transportation industry, the Interstate Commerce Commission should be given explicit direction for regulation of the motor carrier industry and well-defined parameters within which it may act pursuant to congressional policy; that the Interstate Commerce Commission should not attempt to go beyond the powers vested in it by the Interstate Commerce Act and other legislation enacted by Congress; and that legislative and resulting changes should be implemented with the least amount of disruption to the transportation system consistent with the scope of the reforms enacted.
(Emphasis added).
The legislative history of the 1980 Act explains the section thus:
Section 3 stresses the importance to the national economy and national defense of a safe, sound, competitive, and fuel-efficient motor carrier system. It also states that, in order to achieve such a system, Congress finds it necessary to revise the statutes governing Federal regulation of the motor carrier industry. The existing regulatory structure has tended in certain circumstances to inhibit innovation and growth and has failed, in some cases, to sufficiently encourage operating efficiencies and competition.
In revising the statute, Congress also intends to give the Interstate Commerce Commission explicit direction for the regulation of the motor carrier industry and to ease that industry’s uncertainty about the future of regulation by the Commission. The Commission is admonished to stay within the powers specifically vested in it by the revised law.
In addition, this section states that Congress intends that the changes in the statutes and any resulting changes be implemented with the least amount of disruption to the transportation system as possible. •
H.R.Rep. No. 1069, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 2283,
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 49. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_natpr
|
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 "natural persons". 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.
Philip BANKS, Appellant, v. Donald WOLK, Brad Cohen, Larry Cohen, First Fidelity Insurance Corp., James Weiner, Esquire, First Fidelity Financial Group.
No. 90-1278.
United States Court of Appeals, Third Circuit.
Argued Sept. 18, 1990.
Decided Nov. 9, 1990.
Robert J. Sugarman (argued), Sugarman & Associates, Philadelphia, Pa., for appellant.
Michael P. Coughlin (argued), David N. Bressler, Lesser & Kaplin, Blue Bell, Pa., for appellee Donald Wolk.
Thomas Martin (argued), Philadelphia, Pa., for appellees Brad Cohen, Larry Cohen, First Fidelity Ins. Corp., James Weiner and First Fidelity Financial Group.
Before HIGGINBOTHAM, Chief Judge, SCIRICA and ALDISERT, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This case requires us once again to address the question of what constitutes a “pattern of racketeering activity” under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.A. §§ 1961-1968 (1984 & Supp.1990).
Plaintiff Philip Banks filed an initial complaint against defendants Donald Wolk, Brad Cohen, Larry Cohen, James Weiner, First Fidelity Insurance Corporation (“FFIC”), and First Fidelity Financial Group (“FFFG”). The complaint contained both RICO and pendent state law claims arising from an alleged real estate fraud. The district court dismissed this complaint under Fed.R.Civ.P. 12(b)(6) for failure to allege a sufficient “pattern” under RICO, and plaintiff sought leave to file an amended complaint containing new allegations. The district court denied this motion on the grounds that the amended complaint would still fail to state a RICO claim, and plaintiff now appeals from this denial. We will affirm the district court’s dismissal of the RICO claims against defendants Donald Wolk, James Weiner, FFIC, and FFFG. However, we will reverse the order of the district court with instructions to allow certain claims against Brad Cohen and Larry Cohen to proceed.
I. BACKGROUND
Denials of leave to amend a complaint under Fed.R.Civ.P. 15(a) are reviewed for abuse of discretion. Kiser v. General Elec. Corp., 831 F.2d 423, 426-27 (3d Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). However, reversal is proper when the district court bases its denial on an erroneous rule of law. See, e.g., Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir.1989). Here, the district court denied plaintiffs motion for leave to amend on the grounds that the amended complaint would fail to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Consequently, we must accept as true all factual allegations in the amended complaint and all reasonable inferences that can be drawn from them. The amended complaint must be construed in the light most favorable to the plaintiff, and can be dismissed only if the plaintiff has alleged no set of facts upon which relief could be granted. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988); Labov v. Lalley, 809 F.2d 220, 221-22 (3d Cir.1987). We note that in RICO actions, “in many cases plaintiffs will be able to withstand a facial attack on the complaint and have the opportunity to have their pattern allegations threshed out in discovery.” Swistock v. Jones, 884 F.2d 755, 758 (3d Cir.1989).
The allegations in plaintiffs initial complaint pertained solely to a transaction involving the American Patriot Building in Philadelphia (“AP Building”). According to the complaint, Banks and Wolk had been partners in a partnership that owned the AP Building (“Partnership”). On July 28, 1987, the Partnership entered into an agreement to sell the AP Building to Brad Cohen, his brother Larry Cohen, and FFIC. Unknown to Banks, however, Wolk was also an undisclosed partner in the buying enterprise, and was to become a 50% owner of the building upon sale. The buyers delayed the transaction, which was never completed. After Wolk refused to enter into an agreement to pay Partnership debts, a creditor bank foreclosed upon the AP Building.
The gravamen of the complaint was that Wolk and the Cohens concealed Wolk’s involvement with the buyers in an attempt to gain a favorable price for the AP Building. The complaint also alleged that James Weiner, the attorney for the buyers, participated in this fraud. The RICO claim was based on allegations that all defendants committed two or more unspecified acts of mail and wire fraud in carrying out the scheme. The district court dismissed the RICO count for failure to allege a “pattern of racketeering activity,” since the alleged fraudulent scheme “was a one-time happening without the threat of repetition.” See H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 2901-02, 106 L.Ed.2d 195 (1989) (RICO pattern requires that predicate acts pose threat of continuing criminal activity). Having dismissed the RICO claim, the court then declined to assume jurisdiction over the pendent state law claims.
Plaintiff sought leave to file an amended complaint containing six additional specific allegations against Brad and Larry Cohen, which are as follows. First, in 1982 Brad Cohen formed an entity called the Philadelphia Gold Corporation which later was used “to illegally obtain funds from investors via fraudulent sales orders.” Amended Complaint at ¶ 50. Second, in 1989 the Cohens signed an illusory sale agreement for the Rittenhouse Club in Philadelphia, for the purpose of lowering the property’s value. Id. at ¶ 53(a). Third, in 1987 they misappropriated $1.5 to 2 million in profits from “Securities Trading Commissions [sic]” and invested this money in real estate. Id. at ¶ 53(b). Fourth, in 1986 they misused funds that had been entrusted to them by an investor. Id. at ¶ 53(c). Fifth, in 1984 or 1985 they defrauded another investor of profits that were owed him. Id. at H 53(d). Sixth, sometime between 1986 and 1989 Brad Cohen “illegally financed another party as a strawman in a real estate transaction ... where he was specifically rejected as a potential partner.” Id. at ¶ 53(e).
FFIC and FFFG are named as the RICO “enterprises.” The amended complaint alleges that FFIC and FFFG were formed and operated with money derived from the Philadelphia Gold Corporation scheme, and were the vehicles through which the other frauds, with the exception of the last, were committed. Again, each defendant was alleged to have committed two or more unspecified acts of mail and wire fraud in carrying out these schemes. There are no allegations that Banks, Wolk, or Weiner were involved in any way in the additional frauds.
The district court held that the amended complaint still failed to allege a “pattern of racketeering activity,” since the additional allegations were not sufficiently “related” to the AP Building scheme. See H.J. Inc., — U.S. at -, 109 S.Ct. at 2900-01 (RICO pattern requires relationship between predicate acts). The district court stressed that neither Banks nor Wolk were alleged to have participated in the additional schemes, and that “the transactions in themselves bear no relationship to the breach of fiduciary duty in the original complaint.”
II. STATUTORY LANGUAGE
The RICO statute authorizes civil suits by “[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c) (1988). Section 1962(a) prohibits “any person who has received any income derived ... from a pattern of racketeering activity” from using that money to acquire, establish or operate any enterprise that affects interstate commerce. Section 1962(b) prohibits any person from acquiring or maintaining an interest in, or controlling any such enterprise “through a pattern of racketeering activity.” Section 1962(c) prohibits any person employed by or associated with an enterprise affecting interstate commerce from “conduct[ing] or participating] ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Finally, section 1962(d) prohibits any person from “conspirpng] to violate any of the provisions of subsections (a), (b), or (c).” A “pattern of racketeering activity” requires commission of at least two predicate offenses on a specified list. 18 U.S.C.A. §§ 1961(1), (5) (1984 & Supp. 1990).
We note that no defendant can be liable under RICO unless he participated in two or more predicate offenses sufficient to constitute a pattern. This participation need not be direct. RICO recognizes liability for those who merely aid and abet the underlying predicate offenses. Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1356-58 (3d Cir.1987). Moreover, a defendant can be liable under RICO’s conspiracy provision for agreeing to the commission of a pattern of racketeering activity, even if that defendant does not directly participate in the underlying acts. United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 906, 971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236, 321 (1985); see also Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166-67 (3d Cir.1989) (RICO conspiracy requires “agreement to commit predicate acts and knowledge that the acts were part of a pattern of racketeering activity.”).
In this case, defendants Wolk and Weiner are alleged only to have participated in the AP Building fraud, and there is no indication that either was involved, directly or indirectly, in any of the additional schemes. Consequently, we must consider only the AP Building scheme allegations in determining whether a sufficient “pattern” has been alleged against either Wolk or Weiner. Even if the AP Building scheme were part of a pattern of acts committed by the Cohens, the additional schemes cannot affect the liability of Wolk or Weiner, since they neither participated in those frauds nor agreed to their commission. Because the further allegations involve the Cohens, we will consider separately whether a sufficient pattern has been alleged against them.
Although no party has raised the issue, we note also that FFIC and FFFG are named both as RICO “enterprises” and as defendants. Such a dual role is permissible in actions based on 18 U.S.C. § 1962(a), Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1360-61 (3d Cir.1987), but not in those based on section 1962(c), B.F. Hirsch v. Enright Ref. Co., 751 F.2d 628, 633-34 (3d Cir.1984). Banks appears to allege violations of sections 1962(a), (b), and (c). However, he does not allege that he was injured specifically by the use or investment of income in any enterprise, as is required under section 1962(a). See Rose v. Bartle, 871 F.2d 331, 357-58 (3d Cir.1989). In addition, the amended complaint does not allege a specific nexus between control of any enterprise and the alleged racketeering activity, as is required under section 1962(b). See Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 n. 2 (3d Cir.1989). Consequently, section 1962(c) is the only available basis for liability. Because FFIC and FFFG are named as the enterprises upon which this liability is based, they must be dismissed as RICO defendants.
III. THE H.J. INC. STANDARD
In H.J. Inc. v. Northwestern Bell Telephone Co., — U.S. -, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), the Supreme Court addressed the standards governing RICO’s pattern requirement. The Court stressed that a pattern requires more than the commission of two or more predicate acts. A plaintiff must show also “that the racketeering acts are related, and that they amount to or pose a threat of continued criminal activity.” Id. at -, 109 S.Ct. at 2900 (emphasis in original). These are two separate requirements, “though in practice their proof will often overlap.” Id.
The test for “relatedness” is broad. Borrowing language from another statute, H.J. Inc. states that criminal acts are sufficiently related if they “ ‘have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.’ ” Id. at -, 109 S.Ct. at 2901 (iquoting Dangerous Special Offender Sentencing Act, 18 U.S.C. § 3575(e) (1982), repealed by Sentencing Reform Act of 1984, Pub.L. No. 98-473, tit. II, § 212(a)(2), 98 Stat.1987); see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 3285 n. 14, 87 L.Ed.2d 346 (1985). This statement remains our only guidance in this area.
As for the “continuity” requirement, the Court rejected the notion that RICO requires proof that a defendant engaged in multiple criminal “schemes.” H.J. Inc., — U.S. at -, 109 S.Ct. at 2901. Predicate offenses committed in furtherance of a single criminal scheme can constitute a RICO pattern if the acts present the threat of future criminal activity. The criminal conduct need not be ongoing. Past conduct will satisfy the continuity requirement if “by its nature [it] projects into the future with a threat of repetition.” Id. at-, 109 S.Ct. at 2902 (citing Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987)).
The Court stressed that the question of continuity depends on the facts of each case, but noted that “[predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct.” Id. Although continuity is “centrally a temporal concept,” id., this court has questioned whether the length of time over which the criminal activity occurs or threatens to occur should be the decisive factor without reference to the “societal threat” posed by the activity. Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 597 (3d Cir.1990).
IV. THE ALLEGATIONS AGAINST WOLK AND WEINER
As we have noted, the amended complaint does not allege that defendants Wolk and Weiner participated in any fraud other than the AP Building scheme. We must examine whether the actions of these defendants meet the separate requirements of relatedness and continuity. Since this alleged scheme involved a single real estate transaction, the relatedness requirement is satisfied. The unspecified predicate acts of mail and wire fraud are all related to the common goal of obtaining a lower price for the building. Thus, the critical question is whether the acts “pose a threat of continued criminal activity.” We agree with the district court that they do not.
The AP Building scheme was an attempt to defraud a single investor of his interest in a single piece of real estate over a relatively short period of time. The essence of the charge is that the defendants failed to disclose Wolk’s relationship with the buyers and then somehow used his inside position to drive the Partnership into bankruptcy. It is not clear when the defendants actually formulated their scheme, but the injury to Banks occurred during the eight month period between July 28, 1987, when the sale agreement was signed, and shortly after March 21, 1988, when the creditor bank foreclosed upon the building.
In H.J. Inc., by contrast, the Court stressed that the racketeering predicates “occurred with some frequency over at least a 6-year period.” — U.S. at —, 109 S.Ct. at 2906. That case involved allegations of long-term bribery of regulators by a telephone company. Unlike H.J. Inc., there is no indication that fraud such as the AP Building scheme is “a regular way of doing business” for Wolk or Weiner. See id. at-, -, 109 S.Ct. at 2902, 2906. Nor is there any suggestion that Wolk or Weiner would have continued to defraud Banks in any way. Cf. id. at -, 109 S.Ct. at 2902 (promise to extort money regularly as part of ongoing “insurance” racket would establish threat of continuity despite small number of predicate acts).
Rather, the AP Building scheme more closely resembles that involved in Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593 (3d Cir.1990), in which the defendants were alleged to have destroyed a business by filing a false bankruptcy petition. In that case, we stressed that “the alleged illegal activity posed no threat of additional repeated criminal conduct over a significant period.” Id. at 597 (emphasis in original). Similarly, the alleged actions of Wolk and Weiner were directed solely at defrauding Banks of his interest in the AP building, and do not amount to or threaten long-term criminal activity. This case is unlike Swistock v. Jones, 884 F.2d 755 (3d Cir.1989). Although that case centered around a single episode of real estate fraud lasting approximately one year, there were allegations of further misrepresentations by the defendants in regard to other potential transactions with the plaintiffs. Id. at 759. In this case, there is no such indication of possible future misconduct by Wolk or Weiner.
We note that H.J. Inc. has not rendered obsolete our prior multi-factor pattern inquiry which focused on “the number of unlawful acts, the length of time over which the acts were committed, the similarity of the acts, the number of victims, the number of perpetrators, and the character of the unlawful activity.” Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987). See Marshall-Silver, 894 F.2d at 596 (Barticheck approach entirely consistent with H.J. Inc.). After H.J. Inc., we must focus on these factors as they bear upon the separate questions of continuity and relatedness. Thus, the fact that Wolk and Weiner are alleged to have harmed only one victim in a single scheme is not necessarily dispositive. See Swistock, 884 F.2d at 758. But there is no factor in this case indicating that the actions of Wolk and Weiner threaten future harm to anyone. The AP Building scheme, considered alone, amounts to nothing more than an isolated incident of “garden variety” real estate fraud.
V. THE ALLEGATIONS AGAINST THE COHENS
As we have noted, the additional allegations against Brad and Larry Cohen place these defendants in a different situation from Wolk and Weiner. The amended complaint describes fraudulent behavior by the Cohens extending well beyond the AP Building scheme. Construing these allegations in the light most favorable to the plaintiff, we believe the amended complaint sufficiently alleges that the Cohens have engaged in a pattern of racketeering activity.
At the outset, we note that two of the six additional specific allegations against the Cohens cannot be considered part of a pattern comprising the AP Building scheme. The amended complaint lists FFIC and FFFG as the RICO “enterprises” upon which liability is based. Under 18 U.S.C. § 1962(c), all predicate acts in a pattern must somehow be related to the enterprise. This nexus requirement is satisfied when “ ‘[o]ne is enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise; or the predicate offenses are related to the activities of that enterprise.' ” United States v. Provenzano, 688 F.2d 194, 200 (3d Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634 (1982) (quoting United States v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981)).
However, the amended complaint alleges no connection between either enterprise and the charge that Brad Cohen “illegally financed a strawman.” Amended Complaint at H 53(e). In addition, the allegation involving the Philadelphia Gold Corporation states only that Brad Cohen invested the profits from that fraud in FFIC and FFFG, in violation of 18 U.S.C. §§ 1962(a) and (b). Id. at ¶ 51. No other relationship between this scheme and the named enterprises is alleged. Thus, neither of these schemes can form part of a pattern of acts underlying the § 1962(c) violation.
The amended complaint does allege that FFIC and FFFG were employed in carrying out the other five schemes. We note that the sufficiency of the pattern may require reassessment should that nexus later prove inadequate. At this stage, however, we find the remaining allegations against the Cohens sufficient to constitute a pattern of racketeering activity under § 1962(c). The element of continuity clearly has been established. In addition to the AP Building scheme, the amended complaint charges the Cohens with using FFIC and FFFG in the commission of four other frauds between 1984 and 1989. Accepting these allegations as true, they indicate that fraudulent behavior is a “regular way of doing business” for the Cohens. See H.J. Inc., — U.S. at -, 109 S.Ct. at 2902. As a consequence, a threat of continuing criminal behavior is present.
The main question, therefore, is whether the additional allegations are sufficiently “related” to the AP Building scheme. We believe that they are. As noted above, we must determine whether the Cohens’ alleged criminal acts “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at -, 109 S.Ct. at 2901. The Supreme Court recognized that this test is broad, stating that “[w]e have no reason to suppose that Congress had in mind ... any more constrained a notion of the relationships between predicates that would suffice.” Id.
This test admittedly is difficult to apply. See id. at -, 109 S.Ct. at 2907 (Scalia, J., concurring). In this case, the district court emphasized that neither Banks nor Wolk was involved in any of the additional schemes. However, the fact that Banks was not a victim of the additional frauds should not carry much weight. The reference to “similar victims” in H.J. Inc. cannot be read to require that a plaintiff be injured by more than one predicate act. See, e.g., Town of Kearny v. Hudson Meadows Urban Renewal Corp., 829 F.2d 1263, 1268 (3d Cir.1987) (“Reading into the statute a requirement that a civil plaintiff prove injury from the entire pattern rather than from any predicate act would ... be inconsistent with the core congressional purposes behind its enactment.”). The alleged victims in this case were “similar” in the sense that they all were engaged in business dealings with the Cohens through FFIC and FFFG. Likewise, the reference to “similar participants” does not require that Wolk have participated in the Cohens’ other schemes. Once the requisite connection with the RICO enterprise is shown, the fact that a defendant employed different associates for different predicate acts should not be of overriding significance.
Rather, we focus on the nature of the alleged criminal activity. Cf. Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1168 (3d Cir.1989) (focusing on fact that “the distinctive character of the unlawful activity set out was securities fraud.”). The various alleged schemes employed different techniques, but taken together they indicate the Cohens were at least partially in the business of defrauding those who dealt with FFIC and FFFG. There are more specific similarities as well. The Rit-tenhouse Club and the AP Building schemes both were attempts to drive down the price of real estate. In addition, the AP Building scheme and the allegations of misuse of investment funds all involved breaches of fiduciary duty. We believe the amended complaint adequately alleges criminal episodes that are not “isolated events.”
The relatedness requirement has received less judicial attention than the continuity requirement, perhaps because most disputed RICO allegations have involved single schemes. See, e.g., Medallion Television Enters. v. SelecTV of California, Inc., 833 F.2d 1360, 1363 (9th Cir.1987) (relatedness seldom at issue), cert. denied, — U.S. -, 109 S.Ct. 3241, 106 L.Ed.2d 588 (1989). However, when a plaintiff alleges predicate offenses in furtherance of multiple schemes, we should avoid interpreting the relatedness requirement too narrowly. A single scheme with a limited number of victims often will not project the necessary threat of continuing criminal activity. Thus, if too close a relationship among multiple schemes is required, eases within RICO’s intended ambit may be improperly dismissed. In organized crime cases, where the RICO enterprise exists solely for criminal purposes, the necessary nexus between the predicate acts and the enterprise will often be enough to satisfy the relatedness requirement. Cf. United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir.) (“In some cases both ... relatedness and continuity ... may be proven through the nature of the RICO enterprise.”), cert. denied, — U.S. -, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989). In cases such as this, which allege multiple fraudulent schemes conducted through an otherwise legitimate entity, the relatedness requirement should not insulate defendants who merely vary the methods by which they defraud their victims.
VI. CONCLUSION
Because the amended complaint does not indicate that defendants Wolk or Weiner have engaged in conduct that poses the threat of continued criminal activity, we will affirm the dismissal of the RICO claims against them. We also will affirm the dismissal of the RICO claims against defendants FFIC and FFFG. However, because the amended complaint adequately alleges that Brad Cohen and Larry Cohen have engaged in a “pattern of racketeering activity,” we will reverse the order of the district court and remand with instructions to allow the § 1962(c) and state law claims to proceed against these defendants. Since the state law claims against the Cohens remain, we leave it to the district court to reconsider whether it desires to dismiss the pendent state law claims against the other defendants. We stress that our decision is based solely upon the adequacy of the pleadings. It may be that specific issues will be susceptible to resolution by summary judgment. See Swistock v. Jones, 884 F.2d 755, 758 (3d Cir.1989).
Each side to bear its own costs.
. Although it was not addressed in the district court or on appeal, we raise the question whether the allegations of mail and wire fraud in the amended complaint are sufficient to satisfy the requirement of Fed.R.Civ.P. 9(b) that fraud be pleaded with particularity. See Saporito v. Combustion Eng’g Inc., 843 F.2d 666, 673-76 (3d Cir.1988), vacated on other grounds, 489 U.S. 1049, 109 S.Ct. 1306, 103 L.Ed.2d 576 (1989) (blanket allegation of mail and wire fraud in RICO case, without indicating who made or received fraudulent representation, is insufficient under Rule 9(b)); see also Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985) (allegations must be such as "to place the defendants on notice of the precise misconduct with which they are charged”). The amended complaint gives a general description of the various fraudulent schemes, but contains only a blanket statement that all defendants committed two or more acts of mail and wire fraud "in connection with their real estate scheme.” Amended Complaint at ¶¶ 57, 58. The complaint does not specify any correspondence or conversation alleged to constitute mail or wire fraud. We express no opinion of the merits of this issue.
. We assume without deciding that the allegations against the Cohens state substantive claims of mail or wire fraud, because the issue was not addressed in the district court or on appeal. Should the district court later decide that the AP Building scheme allegations do not state such a claim against the Cohens, then Banks will lack standing to pursue a RICO action against them. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) ("[T]he plaintiff only has standing if ... he has been injured in his business or property by the conduct constituting the violation.”). Moreover, the sufficiency of the pattern may require reassessment if the district court determines that any of the additional allegations do not amount to mail or wire fraud as a matter of law.
. We note that our affirmance of the district court's order dismissing the RICO charges against Wolk, Weiner, FFIC, and FFFG does not preclude Banks from bringing a common law fraud action, in an appropriate forum
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_post_trl
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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".
Wilmer B. GAY, Plaintiff-Appellant, v. George PETSOCK, Warden, James E. McFetridge C.O. 1, Dewue Livingston, Sergeant, Sgt. Whitehouse, Defendants-Appellees.
No. 88-3454.
United States Court of Appeals, Third Circuit.
Submitted July 25, 1990.
Oct. 26, 1990.
Wilmer B. Gay, Lompoc, Cal., pro se.
Ernest D. Preate, Jr., Atty. Gen. of the Com. of Pa., Pittsburgh, Pa. (Kenneth J. Benson, Deputy Atty. Gen., Calvin R. Koons, Sr. Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Litigation Section, Pittsburgh, Pa.), for defendants-appellees.
Before LUMBARD, KEARSE and WINTER, Circuit Judges.
Judges of the United States Court of Appeals for the Second Circuit, sitting by designation.
KEARSE, Circuit Judge:
Plaintiff Wilmer B. Gay, a prisoner currently incarcerated in a federal penitentiary at Lompoc, California, appeals from a final judgment of the United States District Court for the Western District of Pennsylvania, Maurice B. Cohill, Jr., Chief Judge, dismissing his complaint for damages against defendants George Petsock, James McFetridge, Dewue Livingston, and Sgt. Whitehouse for the alleged denial to Gay of access to the courts in violation of his rights under the First and Fourteenth Amendments of the United States Constitution. On appeal, Gay contends principally that the district court erred in (1) summarily dismissing the complaint against Pet-sock; (2) directing verdicts in favor of Livingston and Whitehouse; (3) not setting aside the jury’s verdict in favor of McFetridge; and (4) denying a number of Gay’s pretrial motions. Finding no merit in any of his arguments, we affirm the orders and judgment of the district court.
I. BACKGROUND
The complaint centers on events that occurred in July 1984 when Gay, who had been convicted on state criminal charges, was incarcerated at the State Correctional Institution at Pittsburgh, Pennsylvania (“SCIP”). Petsock was the Superintendent of SCIP, McFetridge and Livingston were SCIP corrections officers, and Whitehouse was a sergeant in the Pennsylvania State Police. The complaint alleged that on July 27, 1984, McFetridge, who was at the time the subject of another lawsuit brought by Gay, ordered Gay to remove all legal materials from his cell. These materials related to Gay’s own state criminal appeal and civil actions, as well as to cases in which Gay was providing legal assistance to other prisoners. After Gay refused to follow McFetridge’s order, he was charged with a prison infraction and, after a disciplinary hearing, was confined to his cell for fifteen days. The complaint alleged that Petsock and Livingston had acted in concert with McFetridge in connection with these events. In addition, he alleged that White-house acted in concert with McFetridge by refusing to process a criminal complaint against McFetridge.
Prior to trial, Petsock successfully moved to dismiss the complaint against him. The action proceeded to trial against the remaining defendants before a jury. At the close of Gay’s case, the court granted directed verdicts in favor of Livingston and Whitehouse. Thereafter, the jury returned a verdict in favor of McFetridge. Judgment was entered accordingly, dismissing the complaint against all defendants.
This appeal followed. Following Gay’s motion to disqualify the judges of the United States Court of Appeals for the Third Circuit, we were designated to hear this appeal by the Chief Justice of the United States Supreme Court pursuant to 28 U.S.C. § 291(a) (1988).
II. DISCUSSION
On appeal, Gay contends principally that the district court erred in (1) summarily dismissing the complaint against Petsock for failure to state a claim on which relief could be granted; (2) directing verdicts in favor of Livingston and Whitehouse for insufficiency of the evidence; (3) not setting aside the jury’s verdict in favor of McFetridge; and (4) denying a number of Gay’s procedural motions. We have considered all of Gay’s arguments on appeal and, finding no merit in them, we affirm.
A. The Substantive Decisions
The district court dismissed the claims against Petsock on the ground that only McFetridge was alleged to have given the order that Gay send materials home, and that the basis for the claim against Petsock was apparently one of respondeat superior. Giving plenary review to the dismissal, see Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir.1989), we find nothing in the record to suggest that Petsock was involved in the acts complained of or that they were done with his knowledge and acquiescence. Accordingly, the dismissal of the complaint against him was proper. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).
We also find no error in the trial court's granting of directed verdicts in favor of Livingston and Whitehouse for lack of any evidence that they conspired with McFetridge. “Our review of the grant of a directed verdict is plenary and we apply the same standard as would the district court in passing on the motion originally.” Frank Arnold Contractors v. Vilsmeier Auction Co., 806 F.2d 462, 463 (3d Cir.1986). A directed verdict is appropriate when “there is insufficient evidence from which a jury could reasonably find for the opponent, the court viewing the evidence in the light most favorable to the opponent, and giving him the advantage of every fair and reasonable inference.” Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.), cert. denied, 469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196 (1984). The trial evidence relied on by Gay, even viewed in the light most favorable to him and with all reasonable inferences drawn in his favor, was insufficient to permit a rational juror to infer that either Livingston or Whitehouse had engaged in the alleged conspiracy.
We likewise reject Gay’s apparent challenge to the jury verdict in favor of McFetridge. To the extent that Gay seeks a judgment in his favor notwithstanding the verdict (“n.o.v.”), his request is inappropriate both because the record does not indicate that he moved for a directed verdict at trial, see Fed.R.Civ.P. 50, and because the record does not support such a judgment. It is rarely appropriate to grant a directed verdict or judgment n.o.v. in favor of the party having the burden of proof; such action is reserved for those extreme circumstances where the effect of the evidence is not only sufficient to meet his burden of proof, but is overwhelming, leaving no room for the jury to draw significant inferences in favor of the other party. Fireman’s Fund Insurance Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). On any such motion, the evidence must be viewed in the light most favorable to the nonmoving party. Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474 (3d Cir.1973). Viewing the evidence in the light most favorable to Mc-Fetridge and giving him the benefit of all reasonable inferences, we cannot conclude that the jury’s verdict in his favor was impermissible. To the extent that Gay seeks not judgment n.o.v. but a new trial, we find no basis for reversal. The granting or denial of a motion for a new trial is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 178, 83 L.Ed.2d 112 (1984). We see no abuse of discretion here.
B. The Procedural Rulings
Gay further challenges the court’s denial of a number of his procedural motions, including motions (1) to disqualify the Pennsylvania Attorney General from representing the defendants, (2) to amend his complaint, (3) to require McFetridge and Petsock to return certain materials to him, and (4) to impose sanctions on defendants’ attorney for failing to respond to discovery. He also challenges the court’s refusal to allow him to subpoena Whitehouse to testify at trial. None of these challenges has merit.
In moving to prohibit the state Attorney General from representing defendants, Gay relied on 42 Pa.Cons.Stat.Ann. § 8550 (Purdon 1982). That section contains, inter alia, certain limitations on the indemnity and immunities available to a state employee who has been judicially determined to have caused an injury by engaging in willful misconduct or in the commission of a crime. The statute was inapposite to the present case both because it does not prohibit the Attorney General from representing defendants in a civil suit and because there is no indication in the record that these defendants have ever been judicially determined to have engaged in such conduct. Gay’s motion to disqualify was therefore properly denied.
Gay also contends that the court erred in denying his attempts to amend his complaint. Though leave to amend a complaint should be freely granted in the interests of justice, see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), a motion to amend is committed to the sound discretion of the district judge, see Fed.R.Civ.P. 15(a); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3d Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). Gay’s attempt to add additional state-law claims and an additional defendant was belated, not being made until the first day of trial. The rejection of that attempt as unduly prejudicial to defendants and to the proposed new defendant was well within the discretion of the court.
Nor do we find any error in the district court’s denial of Gay’s motion to amend his complaint to include a demand for specified amounts of damages. The court denied this motion pursuant to Rule 30 of the Rules of Court of the Western District of Pennsylvania, which provides that “[ejxcept for any required jurisdictional allegation of the amount in controversy, a pleading demanding relief for elements of general damages unliquidated in amount shall, without claiming any specific sum, set forth only that money damages are claimed and may specify the categories of damages so claimed.” Gay’s contention that the refusal to allow him to amend his complaint in this respect denied him his Seventh Amendment right to a jury trial is frivolous. He was accorded a jury trial, and we have seen no indication that he was prevented from offering proof as to the amount of damages he claimed to have suffered.
The material that Gay sought to have McFetridge and Petsock “return” to him as “unlawfully] tak[en]” was described by Gay as a legal folder relating to a complaint other than his present complaint, and was material confiscated in 1987 from the cell of another inmate, not Gay. Gay has shown no reason why the lawfulness of the confiscation, or the merits of the complaint to which that material related, should be adjudicated in the present action, and he has not shown that the denial of his motion to compel the “return” of these materials to him was an abuse of discretion.
We also see no merit in Gay’s contention that the district court improperly refused to sanction defendants’ attorney for failing to respond to interrogatories and to a request for admissions. The record indicates that there was full compliance with the court’s discovery orders.
Finally, we see no error in the district court's refusal to allow Gay to subpoena Whitehouse as a witness at trial. Upon inquiry by the court, Gay indicated that he wanted to question Whitehouse as to why there had been no prosecution of a 1982 criminal complaint filed by Gay against Mc-Fetridge. The court ruled that the failure of Whitehouse to institute a criminal prosecution would not be admissible at the trial in the present case. That ruling and the denial of the subpoena were well within the court’s discretion. See, e.g., Fed.R.Evid. 403; Cowgill v. Raymark Industries, Inc., 832 F.2d 798, 805 (3d Cir.1987) (trial judge has wide discretion to exclude proffered evidence that is collateral, rather than material, to the issues in the case).
CONCLUSION
We have considered all of Gay’s arguments on this appeal and have found them to be without merit. The orders and judgment of the district court are affirmed.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_4
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". Your task is to determine what subcategory of business best describes this litigant.
DAVIES et al. v. LAHANN et al.
No. 2937.
Circuit Court of Appeals, Tenth Circuit.
Nov. 10, 1944.
Rehearing Denied Dec. 20, 1944.
A. T. Hannett, of Albuquerque, N. M. (M. C. Mechem, of Albuquerque, N. M., on the brief), for appellants.
John C. Watson, of Santa Fe, N. M. (A. H. Hudspeth, of Carrizozo, N. M., on the brief), for appellees.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
Adele Lahann and others brought this action against R. C. Davies and The Employers’ Liability Assurance Corporation to recover on a bond. It was alleged in the complaint that plaintiffs, together with Pauline Lahann, since deceased, executed and delivered to The Carrizozo Mining Company a lease contract covering certain mining claims in New Mexico; that the Mining Company assigned the contract to Davies; that thereafter Davies, as principal, and the Assurance Corporation, as surety, executed the bond, conditioned upon the faithful performance of the contract; and that Davies breached the terms of the contract by failing to make certain payments as and when due. A copy of the alleged contract and a copy of the bond were attached to the complaint. By answer, the defendants admitted the execution of the bond, but denied that it was executed conditioned upon the faithful performance of the lease contract pleaded in the complaint; denied that the lease contract set forth in the complaint had ever been assigned to Davies; and pleaded affirmatively that the lease contract had never been signed by the Mining Company, and that its signature thereto was a forgery.
It appeared at the trial that Judge Hudspeth represented the owners of the mining property in certain negotiations relating to the execution of the lease, E. C. Iden, an attorney at law, acted for the Mining Company, and Joseph L. Smith, an attorney at law, represented Davies in respect of the assignment. A. P. Feeney apparently had some contact or connection with the Mining Company but its exact nature is not made clear in the record. Feeney requested Hudspeth to prepare a lease from the owners to the Mining Company. He suggested that the instrument be sent to him and that he would forward it to the interested parties for execution. On receiving the draft of the contract, Feeney took it to Iden. After consideration, Iden wrote Hudspeth suggesting changes. One change was that instead of the contract providing for a minimum production of 4.000 tons per month, it provide a minimum average of 1,000 tons per month, but not less, than 12,000 tons during any six months’ period. Hudspeth replied that he agreed to the changes, with certain qualifications.. • Iden then prepared a redraft of the contract, dated, June 8, 1942; It provided among other things that the lessee should commence mining ore within thirty days from the delivery of the lease, should mine not less than 1,000 tons per month, and should pay the owners a royalty of twenty-five cents per ton, payable monthly, but it failed to provide that not less than 12.000 tons should be produced during any six months’ period. It further provided that the lessee should keep the premises free and clear of laborers’ and material-men’s liens, and that the lessee should furnish a surety bond conditioned upon performance of the' agreement. Iden, mailed the redraft to Hudspeth. Hudspeth forwarded it to the owners for execution. But before forwarding it, he inserted an additional provision which provided that if the royalty on the ore mined prior to January 1, 1943, should be less than $3,000 the lessee should pay the difference in cash, arid at the end of each semi-annual period thereafter should in like manner pay the sum necessary to bring the total royalty .for the preceding six months period up to $3,000. By letter to Iden, Hudspeth called attention to the omission in respect to the minimum of 12,000 tons during each period of six months and stated that he had inserted the additional provision, quoting it. After the contract had been executed by the owners, Hudspeth delivered it to Iden. Iden’s secretary typed into the unexecuted office copy in his file the signatures and acknowledgments of the owners, but she failed to note in tlie copy the provision which Hudspeth had inserted in the original. Iden mailed the contract to the secretary of the Mining Company for execution. It came back to Iden purporting to have been executed by the corporation, acting through its vice-president and its secretary; and Iden later transmitted it to Hudspeth.
It further appeared at the trial that at the time Iden prepared the redraft or soon afterwards, he exhibited it to Davies and delivered a copy of it to him to be passed upon by his attorney; and that at about the same time, Iden prepared an assignment of the lease from the Mining Company to Davies. The assignment provided for an overriding royalty to the Mining Company, and further provided that Davies should furnish the surety bond required by the original contract. The assignment was dated June 10, 1942, and Davies executed it on or about that date. The Mining Company executed it about six ■days later. It was executed by both parties with knowledge that the lease had not been executed but in the belief that it would be executed later. Sometime after the assignment was executed, Smith ■called at the office of Iden and inquired whether .the lease had been executed by the .owners of the property, was advised that they had executed it, and was furnished the copy from Iden’s file bearing the names in type of the owners. The purpose in making the inquiry and in obtaining the copy was in connection with the execution of the bond. Neither the copy furnished Smith nor the copy attached to the application' for the bond contained the provision which Hudspeth had added. Soon after the unsigned lease was assigned to Davies and he executed the assignment, he went into possession of the property and mined ore from it. During the period pri- or to January 1, 1943, he paid the owners $465.21 as royalty. But he did not make any subsequent payments, and he ultimately abandoned the premises because the operations were not profitable. Had he complied with the terms of the lease, as changed and modified by the provision which Hudspeth inserted in it, he would have paid to the owners additionally, $2,-534.79 on'January 1, 1943, and $3,000 on July 1, 1943.
The court found that the Mining Company did not execute the lease; that the name of the corporation was forged to it; that Davies did not have any knowledge of the change or modification which Hudspeth made in the contract, and never agreed to it; that he honestly and in good faith went into possession believing that the lease would be executed in exactly the form in which Iden prepared it and furnished the copy to Davies; that he continued in such possession believing that it had been executed in that form; and that the bond was executed in the belief that the lease had been executed by the owners and by the Mining Company exactly as prepared by Iden. Entertaining the view that by accepting the assignment Davies adopted the contract and gave the bond to carry out its provisions, the court entered judgment for plaintiffs for the amount of the bond, from which defendants appealed.
It is to be borne in mind from the outset /that this is not an action on the contract, either for reformation, specific performance, damages for breach, or otherwise. Neither is it an action for the recovery of royalty, on the basis of express contract price or in quantum meruit. It is a suit on the bond. And the condition of the bond was the faithful performance of a contract entered into by the owners of the property, as parties of the first part, the Mining Company, as party of the second part, and assigned by the Mining Company to Davies. The bond was a collateral engagement intended to insure performance of a primary obligation specifically described in the bond. And the primary obligation was a contract between the owners, as lessor, the Mining Company, as lessee, and Davies, as assignee. But there was no contract between the owners of the property and the Mining Company. For lack of execution by the Mining Company, no such contract ever existed. In short, the collateral engagement was expressly conditioned for the performance of a particularly described primary obligation, and there never was any such obligation, then or thereafter. Ordinarily, where no effective primary obligation exists, a collateral engagement underwriting it is not operative or enforceable. Merchants’ National Bank v. Citizens’ State Bank, 93 Iowa 650, 61 N.W. 1065; Yangtsze Rapid S.S. Co. v. Deutsch-Asiatische Bank, 9 Cir., 59 F.2d 8. A contract of guaranty may be enforced even though the primary obligation is invalid, if the guaranty is a separate and independent undertaking binding the guarantor apart from the primary obligation. Bank of Plant City v. Canal-Commercial Trust & Savings Bank, 5 Cir., 270 F. 477; Border National Bank v. American National Bank, 5 Cir., 282 F. 73, certiorari denied, 260 U.S. 701, 732, 43 S.Ct. 96, 67 L.Ed. 471. But the bond on which recovery was had in the court below was not an independent undertaking of that kind, separate and apart from the primary obligation. Instead, it was essentially a collateral engagement conditioned upon performance of a primary obligation. And it may be conceded, without deciding, that a cause of action will lie on a bond to underwrite performance of a lease covering real property, even though the lease is voidable but not void for lack of being acknowledged. Backus v. Fecks, 71 Wash. 508, 129 P. 86, Ann.Cas.1914C, 553. But this is not a case of that kind. Here there was no contract between the original parties — valid, voidable, or void.
It remains to inquire whether Davies adopted the contract while it was in process of execution and became obligated to perform its terms and conditions, even though it never became effective as between the owners of -the property and the Mining Company. While ratification and adoption are sometimes used interchangeably in the decisions, there is a distinction between the two. Ratification is in essence the recognition or confirmation of that which has been done without authority, or done insufficiently. Whether accomplished by express or implied means, it is the confirming or sanctioning of a previous unauthorized act, or an act insufficiently done. More often than otherwise, it arises in respect of an act or contract of an agent, done or purported to be done for a principal who subsequently sanctions or confirms it. And when effected, it relates back to the date of the act or contract. Adoption in its primary significance is the taking and receiving as one’s own that to which he bore no prior relation, colorable or otherwise. It is one appropriating to himself something which another previously did in his own, behalf. It frequently arises in respect to a contract made by promoters who propose to organize a corporation, and the corporation after being formed takes over the contract as its own. It is somewhat in the nature of a novation. But here Davies never intended or 'undertook to assume as his own the lease contract in its altered and modified form. At the time he accepted the assignment, at the time the bond was executed and delivered, and at' the time the ore was mined, he did not know that the contract had been altered and modified by the insertion of the new provision. Neither Davies nor the surety on the bond had any knowledge of the change or modification until after Davies had abandoned the property. There was no meeting of minds between Davies and the Mining Company, or between Davies and the owners, that Davies .should take over at his own and appropriate unto himself as lessee the contract in its changed and altered form. The assignment was executed and accepted, and the bond was executed and delivered under mistake of material fact. The requisite mutuality of assent was wanting. And a contract executed under mutual misapprehension as to a material fact going to the essence of the contract may be voided, provided no right has been acquired in due course. United States v. Golden, 10 Cir., 34 F.2d 367.
In their effort to sustain the judgment, appellees place strong reliance upon Levy v. Continental Supply Co., 101 Okl. 144, 223 P. 833. They say that the case is squarely in point on the question of adoption. There Continental Supply Company and Union National Bank were joint owners of two oil leases and certain other property. Green, purporting to be the agent of Continental Supply. Company, executed a contract in the name of the company for the sale of the leases and other property to Levy. The action was to recover the value of the oil included in the contract. Continental Supply Company denied the authority of Green to represent it in the execution of the contract. But there the parties proceeded to carry out the contract. One boiler was missing, and the cashier of the bank, acting for the supply company and the bank, entered into a supplemental agreement with Levy in which specific reference was made to the earlier contract executed by Green. And later the supply company and the bank, each acting by its proper officers, executed separate assignments of 'the lease to Levy; and each assignment made specific reference to the contract of sale executed by Green, and to the supplemental agreement executed by the cashier of the bank. The court held that in those circumstances it was immaterial whether Green was the authorized agent of the Continental Supply Company. But in that case the corporation, with full knowledge of all the material facts, recognized the unauthorized contract and took the benefits flowing from it. No comparable facts are present here.
Estoppel by acceptance of benefits is urged. It is said that Davies represented himself to be the assignee of the contract; that he assumed its obligations, whatever they might be; that he enjoyed all the benefits of it for a year; and that he is therefore estopped. But the acts, conduct, and representations relied upon to constitute estoppel occurred without knowledge on the part of Davies that the contract had been modified and changed in material respect after Iden exhibited it to him. One of the essential elements of estoppel by representation or conduct is that the representation must have been made or the conduct must have taken place with knowledge of all the material facts. State National Bank of El Paso, Texas v. Cantrell, 47 N.M. 389, 143 P.2d 592. That element is absent here. At the time Davies accepted the assignment in writing, and at the time the bond was executed and delivered, he believed that the contract was in process of being executed in the form originally prepared. He did not know that it had been changed or modified. And he did not represent that he was the assignee of the contract, as changed and modified; neither did he act under it with knowledge of the change and modification.
Finally, it is urged that Davies did know or should have known of the change or modification in the contract. But the court expressly found that he did not have such knowledge and that he was not guilty of negligence, fraud, or other misconduct in his dealings with the owners of the property or their agents. The evidence and the inferences fairly to be drawn from it support the findings. The findings are not clearly erroneous, due regard being had for the opportunity of the court to observe the witnesses, appraise their credibility, and^ determine the weight to be given to their testimony. Therefore the findings cannot be disturbed on appeal. Prudential Insurance Co. v. Carlson, 10 Cir., 126 F.2d 607; Newell v. Phillips Petroleum Co., 10 Cir., 144 F.2d 338.
Thc judgment is reversed and the cause remanded.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". What subcategory of business best describes this litigant?
A. oil and gas
B. coal
C. metals
D. other
E. unclear
Answer:
|
songer_crmproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
In the Matter of STEEL STRUCTURES, INC., Bankrupt-Appellee, v. STAR MANUFACTURING COMPANY and Detroit Gasket & Manufacturing Co., Petitioners-Appellants.
Nos. 72-1171, 72-1172.
United States Court of Appeals, Sixth Circuit.
Aug. 3, 1972.
Hugh W. Morgan, James A. Ridley, III, of Kramer, Dye, Greenwood, Johnson, Rayson & McVeigh, Knoxville, Tenn., James K. Giffen, of Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., for appellants.
Issie L. Jenkins, Scott P. Crampton, M. Rothwacks, B. N. Hollander, of Dept, of Justice, Tax Division, Washington, D. C., John L. Bowers, Jr., U. S. Atty., Leon Steinberg, Trustee in Bankruptcy, Knoxville, Tenn., for appellees.
John A. Walker, Jr., Knoxville, Tenn., of Egerton, McAfee, Armistead, Davis & McCord, Knoxville, Tenn., for trustee.
Before PHILLIPS, Chief Judge, and TUTTLE and O’SULLIVAN, Senior Circuit Judges.
Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for tbe Fifth Circuit, sitting by designation.
PER CURIAM.
This is an appeal from the decision of the District Court, 346 F.Supp. 332, affirming an order of the Referee in Bankruptcy which set aside a transaction as a fraudulent conveyance and voidable preference. We affirm on the basis of the comprehensive memorandum of Referee Clive W. Bare, set forth as an Appendix hereto.
Star Manufacturing Company further appeals from the District Judge’s refusal to receive additional evidence. The District Court found that “[t]he proposed evidence would not [have] change[d] [its] conclusions.” We agree. Star has failed to show such abuse of discretion as would warrant overturning this decision.
Affirmed.
APPENDIX
MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
I
This controversy over the execution of a fourth mortgage on the bankrupt’s real property which is attacked by the trustee as a lien obtained by legal or equitable proceedings within four months of bankruptcy, void under Sec. 67a(1) of the Bankruptcy Act; and/or a fraudulent transfer under Sec. 67d(3) of the Act; and/or a voidable preference under Sec. 60a and b of the Act. A fifth mortgage executed by the bankrupt at the same time is pertinent only insofar as it pertains to the entire transaction involving the bankrupt; Star Manufacturing Company of Oklahoma; and Detroit Gasket and Manufacturing Company, as the funds realized by the trustee from the sale of the real property are sufficient only to pay the first three mortgages in full and $10,000.00 on the fourth mortgage or to general creditors, as the facts and law require. Facts which have either been stipulated by the parties or found by the court are as follows.
II
(1) Steel Structures, Inc. (hereafter Steel Structures or bankrupt), entered into a contract with Detroit Gasket and Manufacturing Company (hereafter Detroit Gasket) to construct a steel addition /to an existing building belonging to Detroit Gasket in Newport, Tennessee. The contract was in the approximate amount of $27,000.00 and not bonded.
(2) Star Manufacturing Company of Oklahoma (hereafter Star) furnished materials for this construction to Steel Structures in the amount of $18,045.04.
(3) The contract was completed and Detroit Gasket paid Steel Structures in full in December, 1969, and/or January, 1970.
(4) On January 30, 1970, Star filed a Notice of Lien for materials and supplies furnished with the Register of Deeds, Cocke County, Tennessee. This notice of lien was filed against the property of Detroit Gasket.
(5) On April 30, 1970, Star filed an Original Lienor’s Bill in the Chancery Court for Cocke County, Tennessee, naming as defendants Steel Structures and Detroit'Gasket. This Bill was filed to enforce Star’s claimed lien for materials and supplies as set forth in the Notice of Lien described above. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970.
(6) An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On or about May 29, 1970, Detroit Gasket filed an Answer denying the validity of the claimed lien.
(7) On July 29, 1970, Hugh W. Morgan (an attorney representing Star), Thomas S. Matthews (President of Steel Structures), Doyle Vaden (Vice-President and Secretary of Steel Structures), John O. Threadgill (an attorney representing Steel Structures), and James K. Giffen (an attorney representing Detroit Gasket), assembled at the office of John O. Threadgill, and the Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket was settled on the following basis:
Steel Structures executed and delivered to Detroit Gasket a promissory note in the amount of $16,276.54 secured by a fourth mortgage on Steel Structures’ real estate located in Knox County. Detroit Gasket delivered two checks to Steel Structures payable to Steel Structures and in the amounts of $16,240.54 and $36.00. The former check was endorsed by Steel Structures and delivered to Star together with a promissory note in the amount of $1,-804.50 secured by a fifth mortgage on the Steel Structures, Knox County, real estate. The latter check was delivered to the Cocke County Chancery Court Clerk for payment of court costs of Star’s Lienor’s Bill filed in that court. Star executed a- release of its claimed lien and all the parties approved for entry an agreed order of dismissal with full prejudice of the suit commenced by Star against Steel Structures and Detroit Gasket.
(8) On July 29, 1970, after the transaction referred to in paragraph (7), the assets and liabilities of Steel Structures were the same as set forth in its petition in bankruptcy filed on August 11, 1970. The summary of such debts and assets taken from Schedules A & B of such petition are as follows:
Taxes due United States ............$ 23,959.73
Taxes due States................... 1,630.73
Secured claims..................... 48,287.04
Unsecured claims .................. 107,185.17
Accommodation Paper .............. 7,440.22
Schedule A — Total .............$188,502.89
Real Estate ......................$ 35,000.00
Stock In trade .................... 55,115.00
Debts due on open accounts.......... 75,319.58
Deposits of money In banks and elsewhere ................. 50,00
Schedule B — Total .............$165,484.58
(9) During May or June of 1970, Mr. Matthews, President of Steél Structures, and Doyle Vaden, Vice-President and Secretary of Steel Structures, discussed the advisability of filing a petition in bankruptcy on behalf of said corporation with E. L. Hicks, Certified Public Accountant of Knoxville, Tennessee. During the latter part of July or the first part of August, 1970, Messrs. Matthews and Vaden discussed the filing of a petition in bankruptcy for the corporation with Max M. Morrison, attorney of Knoxville, Tennessee. Mr. Morrison’s petition for compensation at attorney for the bankrupt filed September 3, 1970, reflects conferences with officers of the bankrupt commencing August 2 and ending August 10 when the petition and completed schedules were sworn to by-Mr. Matthews.
III
Lien obtained by legal or equitable proceeding within four months before the filing of the bankruptcy petition.
The trustee’s first attack on the transaction in question is based on Sec. 67a (1) of the Bankruptcy Act which provides as follows:
“Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this Act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this Act.”
The trustee cannot prevail under this section. No lien was obtained by legal or equitable process or proceedings against any property of the bankrupt. The Original Lienor’s Bill filed by Star against Steel Structures and Detroit Gasket in the Chancery Court for Cocke County, Tennessee, sought to enforce a lien against property owned by Detroit Gasket — not by the bankrupt. Also, Sec. 67a(l) relates to and invalidates liens obtained by legal or equitable proceedings and not contractual liens. Such liens, however, may, of course, be invalidated if they constitute voidable preferences under Sec. 60 of the Act or fraudulent conveyances under Sec. 67d.
Collier summarizes the conditions that must be satisfied in order for the trustee to avoid a lien under Sec. 67a(l) as follows:
“A lien obtained in or pursuant to judicial proceedings, to be voidable at the suit of the trustee or the debtor, as the case may be, must, however, satisfy certain conditions: (1) it must attach the property of the bankrupt which passes to the trustee under Sec. 70a or is exempt under Sec. 6; (2) it must have been acquired within four months prior to the initiation of the bankruptcy proceedings ; and (3) it must either have attached during the insolvency of the bankrupt,, or it must have been sought and permitted in fraud of the provisions of the Act.” Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.03, p. 66.
As heretofore stated, neither Star nor Detroit Gasket obtained a lien against the bankrupt’s property in or pursuant to a judicial proceeding. The trustee’s attack under Sec. 67a(l) therefore fails.
IV
Fraudulent transfer under Sec. 67d(8) of the Bankruptcy Act.
Sec. 67d(3) enacts:
“Every transfer made and every obligation incurred by a debtor who is or will thereby be rendered insolvent, within four months prior to the filing of a petition initiating a proceeding under this Act by or against him is fraudulent, as to then existing and future creditors: (a) if made or incurred in contemplation of the filing of a petition initiating a proceeding under this Act by or against the debtor or in contemplation of liquidation of all or the greater portion of the debt- or’s property, with intent to use the consideration obtained for such transfer or obligation to enable any creditor of such debtor to obtain a greater percentage of his debt than some other creditor of the same class, and (b) if the transferee or obligee of such transfer or obligation, at the time of such transfer or obligation, knew or believed that the debtor intended to make such use of such consideration. The remedies of the trustee for the avoidance of such transfer or obligation and of any ensuing preference shall be cumulative: Provided, however, That the trustee shall be entitled to only-one satisfaction with respect thereto.” Sec. 67d(6) enacts:
“A transfer made or an obligation incurred by a debtor adjudged a bankrupt under this Act, which is fraudulent under this subdivision d against creditors of such debtor having claims provable under this Act, shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value . . . ”
Sec. 67e of the Bankruptcy Act of 1898 enacted that all conveyances, transfers, assignments, or encumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt within four months prior to the filing of the bankruptcy petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against creditors except as to purchasers in good faith and for a present fair consideration. When subdivision (d) of Sec. 67 of the Bankruptcy Act was set up in the course of the 1938 revision, as a substitute for the former first sentence of Sec. 67e, Congress introduced as Paragraph (5) of Sec. 67(d) a provision making fraudulent transfers and obligations within four months of the filing of a bankruptcy petition, “made or incurred with intent to use the consideration . to effect a preference to a third person voidable under Sec. 60 of this Act.” The purpose of this provision, according to the House Judiciary Committee Report, was to cure a conflict in court decisions. The Supreme Court in Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917), had held that a mortgage was void under Sec. 67e of the Act, as in fraud of creditors, where it was given to the debtor’s brother-in-law to obtain funds to pay off the debt- or’s liability to a bank on forged documents, the debtor being hopelessly insolvent and the mortgagee fully aware of all the facts. Remington on Bankruptcy, Vol. 4, Sec. 1647, p. 149. Remington goes on to say that thereafter some of the lower courts reached the same result, that some went even further, but that others reached a contrary result. Remington, Vol. 4, pp. 150 and 151.
The 1938 version of Sec. 67d(3) was amended in 1952. Again quoting Remington—
“The 1938 version of Sec. 67(d)(3) was subjected to two criticisms: (1) it went considerably beyond the Supreme Court’s decision in Dean v. Davis and, as phrased, extended to any ease where an insolvent debtor borrowed money on security intending to use the security to pay off unsecured creditors; (2) it limited its application to instances where the intent was to effect preferences voidable under Sec. 60. In connection with proposed revision of this paragraph by the Act of July 7, 1952, the Report of the House Judiciary Committee recognizes the force of these criticisms. With respect to the latter, it says that ‘If anything, the estate needs greater protection in a case where the preference is not voidable [under Sec. 60], since the need for pursuing the auxiliary transaction is more acute where the preferred creditor is invulnerable.’ ” Remington, Vol. 4, p. 152.
To meet these objections and to provide a more accurate statutory embodiment of Dean v. Davis, the present language of Sec. 62d(3) (sic) was enacted.
Collier on Bankruptcy, 14th Ed., Vol. 4, Sec. 67.38, p. 545, states that 67d(3), as amended in 1952, “is designed to coordinate with Secs. 60 and 67a(l)(b) in codifying the rule of Dean v. Davis.”
To reach a determination of the issues involved in the present controversy, the actual situation that existed on July 29, 1970, must be scrutinized. Steel Structures, in the latter part of 1969, completed the construction of an addition to an existing building on Detroit Gasket’s property. Detroit Gasket paid Steel Structures approximately $27,000.-00 in full for this work. Steel Structures, while constructing this building, had purchased materials for such construetion from Star. Steel Structures did not pay Star for these materials. Star’s materials’ claim amounted to $18,045.04. On January 30, 1970, Star filed notice of lien and on April 30, 1970, filed a lienor’s bill against Detroit Gasket’s property. A Writ of Attachment was issued April 30, 1970, and levied May 1, 1970. Tennessee Code Annotated 64-1101 et seq. An agreed order was entered allowing Detroit Gasket until May 29, 1970, to answer or otherwise plead. On May 28, 1970, Detroit Gasket filed an answer denying the validity of the claimed lien. Steel Structures did not answer. Steel Structures did not have the money to satisfy the lien claim. On July 29, 1970, Detroit Gasket advanced Steel Structures $16,276.54 to pay Star 90 per cent of its debt so that the asserted lien would be released. To secure this advance, Detroit Gasket took a fourth mortgage on Steel Structures’ property. As this advance did not pay Star in full, it took a fifth mortgage on Steel Structures’ property in the amount of $1,804.50 for the balance due on the Detroit Gasket job.
The parties agree that for the trustee to prevail under Sec. 67d(3) he must allege and prove the following:
(1) That the debtor has made a transfer of his property or incurred an obligation;
(2) That the debtor was insolvent at the time or as a result of the transfer or obligation;
(3) That the transfer or obligation became effective within four months of the filing of the petition initiating a proceeding under the Bankruptcy Act;
(4) That the transaction must have been entered into in contemplation of the filing of such a petition or in contemplation of liquidation of all or the greater portion of the debtor’s property;
(5) That the transaction must have been entered into with the intent to use the consideration obtained to enable a creditor of the debtor to obtain a greater percentage of his debt than some other creditor of the same class;
(6) That the transferee or obligee must, at the time of the transaction, know or believe that the debtor intends to make such use of the consideration.
See generally Collier, 14th Ed., Vol. 4, Sec. 67.38.
From the stipulated facts, the parties also agree that the bankrupt made a transfer of property (Element (1) above); that the bankrupt was insolvent at that time (Element (2) above); and that such transfer was effective within four months of bankruptcy (Element (3) above). This leaves for consideration by the court Elements (4), (5), and (6).
At the outset, it appears appropriate to point out that, for the trustee to avoid the transfer in question under Sec. 67d(3) of the Bankruptcy Act, a finding of “fraudulent intent” is not required, nor is the question of “fair consideration” or “good faith” involved. Stripped to its essential elements, this court’s decision under Sec. 67d(3) must be based on findings of whether (1) the transaction was entered into in contemplation of the bankrupt’s filing of a bankruptcy petition; (2) with the intent to use the consideration obtained to enable a creditor (Star) to obtain a greater percentage of its debt than some other creditor of the same class; and (3) Detroit Gasket’s knowledge or belief that Steel Structures intended to make such use of the proceeds.
Contemplation of Bankruptcy
The testimony of Mr. Matthews, president of Steel Structures, on this point is clear:
Q. — At this time [July 29] were you contemplating filing a petition in bankruptcy for the corporation?
A. — It looked pretty evident, Mr. Brooks. Yes, sir.
* -x- -x- * * -x-
Q. — You just testified that at that time it looked imminent that you were to file a petition in bankruptcy. Had you decided to file a petition in bankruptcy on July 29?
A. — No, sir. I don’t think so.
Q. — Had you consulted an attorney on July 29?
A. — Yes, sir. I had talked to an attorney prior to that time.
Q. — I believe Mr. Morrison represented you. Did you talk to Mr. Morrison about this ?
A. — Yes.
Q. — Prior to that time ?
A. — Yes.
Mr. Matthews further testified that, prior to July 29, 1970, he had discussed bankruptcy with Mr. Hicks, Steel Structures’ auditor. Three days after the July 29 transaction, Mr. Matthews actually went to an attorney who commenced preparation of the bankrupt’s petition and schedules.
Detroit Gasket insists that the purpose of the loan was to enable Steel Structures to continue in business and obtain materials from Star, its principal supplier. At one point Mr. Matthews testified that, when he executed the mortgage, he hoped to induce Star to extend further credit. The plain facts, however, form no basis for this expectation. Even after executing the two mortgages, Steel Structures still owed Star $28,000.00 on another job. Star had not extended credit to Steel Structures for many months. Star, therefore, was not a major supplier of Steel Structures on July 29, 1970, as insisted by Detroit Gasket.
Although the stipulation entered into between the parties indicates insolvency of some $23,000.00 on July 29, 1970, the actual amount of insolvency was much greater. Three accounts receivable carried on Steel Structures’ books in the amount of some $57,000.00 were either disputed or uncollectable. In June, 1970, its business had been seized by Internal Revenue agents but released about a week later when it was able to raise $11,000.00. Even this payment did not bring its tax account to a current status, as on July 29, 1970, it apparently owed an additional $25,000.00 for withholding and social security taxes. In 1967, 1968, and 1969 its total losses had exceeded $125,000.00. It was indebted to some one hundred twenty-five unsecured creditors with claims totaling over $90,000.00. These facts, of course, were known to Steel Structures’ president, Mr. Matthews, on July 29, 1970.
It is my conclusion that, when Steel Structures entered into the transaction on July 28, 1970, it was contemplating bankruptcy. In fact, such date can be considered the “eve of bankruptcy,” for preparation of the bankruptcy petition and schedules commenced within seventy-two hours thereafter.
Under Sec. 67d(3) the trustee is not required to show that the knowledge or belief of the transferee or obligee extended to the debtor’s contemplation of liquidation or a proceeding under the Bankruptcy Act. “The statute requires only knowledge or belief ‘that the debtor intended to make such use of such consideration,’ i. e„ that the debtor intended ‘to use the consideration ... to enable any creditor to obtain a greater percentage of his debt than some other creditor of the same class.’ Such a belief or knowledge includes a realization or surmise, at least, that the debtor is insolvent.” Collier, 14th Ed., Vol. 4, Sec. 67.38, p. 554 (emphasis added).
Clearly, the transfer in question diminished Steel Structures’ assets available for payment to general creditors. Prior to the transaction, Star was an unsecured creditor in the amount of $18,045.04 (as to the transaction under consideration). After the transaction, Star’s unsecured indebtedness had been reduced by $16,240.54 and Detroit Gasket was a secured creditor in that amount (plus an additional $36.00 advanced by Detroit Gasket to pay court costs in Star’s lienor’s suit). Star, thereafter, was also a secured creditor holding a fifth mortgage on the bankrupt’s property in the amount of $1,804.50.
The sole purpose of the transaction was to enable Steel Structures to pay Star an unsecured debt. All of the parties to the transaction knew this to be true. It was intended that the funds be used for that purpose; the funds were so used. Detroit Gasket’s check was not even deposited in Steel Structures’ bank account but immediately endorsed over to Star and deposited to its own account.
Intent
It cannot be seriously disputed that Steel Structures’ intent was to use the consideration obtained from Detroit Gasket to enable Star to be paid a greater percentage of its debt than other creditors of the same class (unsecured creditors). It was not only the intent of Steel Structures’ to use the consideration obtained for that purpose, it was the sole purpose underlying the entire transaction. The reason for executing the deed of trust was “to get Star paid and get the lien taken off” Detroit Gasket’s property. (Matthews' testimony February 17, 1971.) The purpose to which the proceeds of a loan are immediately applied is in itself evidence of the intent with which it was sought. Matter of Anderson, 252 F. 272 (DCRI 1918).
“When bankruptcy or liquidation is contemplated, an intent to make even a fractional payment to a particular creditor will ordinarily satisfy this requirement of Sec. 67d(3). The reason is that in the ensuing bankruptcy or other distribution on liquidation the fractional payment will enable the creditor receiving it to have an advantage pro tanto over creditors whose claims were not so reduced.” Collier, 14th Ed., Vol. 4, sec. 67.38, p. 553, footnote 27.
Transferees’ Knowledge
Both Star and Detroit Gasket knew at the time of the transaction that Steel Structures intended to pay Star the proceeds of the advance. This fact cannot be disputed.
In December, 1969, Star’s credit manager came to Steel Structures’ offices and went over the Detroit Gasket account. When he saw that Steel Structures was unable to pay Star, the lien action against Detroit Gasket was commenced. After the lien notice was filed, Steel Structures’ president, Mr. Matthews, promised Detroit Gasket he would “make an effort to pay [Star] which we were unable to do.” Thereafter, Detroit Gasket made several inquiries of Steel Structures and was informed that they were still trying to make arrangements to pay. Detroit Gasket never threatened legal action but advised Steel Structures they were turning the matter over to their attorneys. (Mr. Matthews’ testimony February 17, 1971.)
The trustee has carried the burden of proof required to avoid the transfer under Sec. 67d(3) of the Bankruptcy Act.
Detroit Gasket insists that, even if the court finds that all six elements of proof required to avoid the transfer under Sec. 67d(3) are satisfied, the mortgage is still valid against the trustee because of the exception provided in Sec. 67d(6) of the Bankruptcy Act — a transfer fraudulent under subdivision (d) “shall be null and void against the trustee, except as to a bona fide purchaser, lienor, or obligee for a present fair equivalent value.” Collier, 14th Ed., Vol. 4, Sec. 67.41, p. 588.
Detroit Gasket overlooks the statement in Collier that, “Knowledge of the transferor’s insolvency may, in conjunction with other factors, disable the transferee from asserting good faith. Indeed, the presence of any circumstance placing the transferee on inquiry as to the financial condition of the transferor may be a contributing factor in depriving the former of any claim to good faith unless investigation actually disclosed no reason to suspect financial embarassment.” (emphasis added) Collier, 14th Ed., Vol. 4, Sec. 67.41, pp. 588-590.
“Notice of facts which would incite a man of ordinary prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would disclose.” Coder v. McPherson, 152 F. 951 (CA 8th 1907). “No principle of law is better settled or more universally accepted.” Grandison v. National Bank of Commerce, 231 F. 800 (2d Cir. 1916), cert. denied 242 U.S. 644, 37 S.Ct. 213, 61 L.Ed. 542.
Both Star and Detroit Gasket on July 29, 1970, had knowledge of many circumstances which would place prudent business persons on inquiry as to Steel Structures’ financial condition. The debt to Star was months past due, in spite of the fact that Steel Structures had been fully paid for its work by Detroit Gasket. A lien had been filed against Detroit Gasket’s property and an attachment levied. Detroit Gasket’s advance to Steel Structures was not in the ordinary course of business. Detroit Gasket is a manufacturing company, not a lending institution. Detroit Gasket’s advance to Steel Structures was for one purpose only — to pay Star’s indebtedness so that its property could be released from Star’s lien and attachment.
Solvent business concerns do not permit materialmen’s liens to exist for several months. It is a “red flag” of warning that cannot be ignored by those who deal with builders and contractors. Detroit Gasket and Star are sophisticated commercial enterprises and are not unaware of realities. Nor are their attorneys. Although Detroit Gasket insists that Star’s lien against its property was not valid, it elected not to defend but to advance money to the bankrupt to pay Star and thereby obtain a release of its property from Star’s asserted lien. Detroit Gasket thereby assumed whatever risks were involved in this unusual transaction, including the present attack on the transfer by the trustee in bankruptcy.
Voidability under Sec. 67d(3) is not restricted to instances where the transfer meets all the terms of a Sec. 60 preference. See Remington, Vol. 4, Sec. 1647, p. 153.
To avoid a transfer under Sec. 67d(3), the burden of proof is initially upon the trustee, but, if a prima facie case is made out and the transferee claims to have been a bona fide purchaser or lienor, protected as such by the statute, he has the burden of so showing. Remington, Sec. 1641, Vol. 4, p. 118. Neither Detroit Gasket nor Star introduced any proof.
Detroit Gasket also insists that the facts in the present case differ substantially from those in Dean v. Davis, supra, as Steel Structures was not motivated by a fear of criminal prosecution to get a particular creditor paid before it went under. I am not sure this statement is correct. This court must take judicial notice of Tennessee statutes.
Tennessee Code Annotated 64-1140 enacts that any contractor, subcontractor, or other person who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor performed on, or materials furnished by his order for, this specific improvement, while any amount for which he may be or become liable for such labor or materials remain unpaid, shall be guilty of a felony and punished accordingly. The gist of this offense is that a person, exercising a contractual relation, cannot obtain funds for a specific purpose and then divert those funds to his own use, leaving outstanding obligations for which a creditor would have a lien upon the owner’s property. See State v. Overton, 193 Tenn. 171, 245 S.W.2d 188 (1951). This statute appears to be used infrequently; however, there can toe no doubt but that those engaged in the contracting business are fully aware of its existence and implications.
V
Voidable preference under Sec. 60 of the Bankruptcy Act.
The trustee also alleges the transfers are void as preferences under Sec. 60 of the Act. That section enacts:
“a(l). A preference is a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class, “b. Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent.”
Thus, this section requires seven elements of proof before a transfer can be set aside:
(1) That the bankrupt made or suffered a transfer of his property;
(2) That the transfer was to or for the benefit of a creditor;
(3) That the transfer was for or on account of an antecedent debt;
(4) That the transfer was made while the bankrupt was insolvent;
(5) That the transfer was made within four months of bankruptcy;
(6) That the effect of the transfer was to enable the creditor to obtain a greater percentage of his debt than some other creditor of the same class;
(7) That the creditor receiving the preference had reasonable cause to believe that the debtor was insolvent. Star insists that the payment to Steel
Structures from the proceeds of the advance from Detroit Gasket is not a preference under Sec. 60 of the Bankruptcy Act, citing Collier, 14th Ed., Vol. 3, Sec. 60.26, p. 882, as follows:
“[W]here a third person makes a loan to a bankrupt debtor specifically to enable him to satisfy the claim of a designated creditor, the proceeds never become part of the bankrupt’s assets, and therefore no preference is created. The rule is the same regardless of whether the proceeds of the loan are transferred directly by the lender to the creditor or are paid to the debtor with the understanding that they will be paid to the creditor in satisfaction of his claim, so long as such proceeds are clearly ‘earmarked.’ ”
Star also cites Grubb v. General Contract Purchase Corporation, 94 F.2d 70 (CA 2d Cir. 1938); In re Henry C. Reusch & Co., Inc., 44 F.Supp. 677 (DC NJ 1942); and Inter-State National Bank of Kansas City v. Luther, 221 F.2d 382 (CA 10th Cir. 1955).
Star is correct when there is no diminution of the bankrupt’s assets. However, when there is a diminution of the bankrupt’s estate, the transfer can be avoided. Collier, 14th Ed., Vol. 3, Sec. 26, p. 884, states—
“Of course, the fact that an alleged preferential payment was made by a third party instead of by the bankrupt will not validate the transaction where the bankrupt’s assets were diminished thereby.” (Emphasis added.)
From time immemorial, courts of law have refused to sanction acts done by indirection, which, if performed directly, would be barred by law. Courts of Bankruptcy have from the beginning placed emphasis upon the purpose and effect of a given transaction irrespective of the manner in which it was accomplished — that is, regardless of whether such transfer was a direct or indirect transaction. The principle has been firmly established that a transfer which indirectly evades the provisions of the Bankruptcy Act by effecting an undue preference to a creditor is voidable. Collier, Sec. 60.08, p. 793, cases cited under footnote 1.
In the case of National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 56 L.Ed. 1042, the court said—
“To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it. . It is not the mere form or method of the transaction that the act condemns, but the appropriation by the insolvent debtor of a portion of his property to the payment of a creditor’s claim, so that thereby the estate is depleted and the creditor obtains an advantage over other creditors.”
See also Grandison v. National Bank of Commerce,
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_appnonp
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, v. Johnnie DEWS, Appellant.
No. 22347.
United States Court of Appeals District of Columbia Circuit.
Argued April 1, 1969.
Decided June 26, 1969.
Mr. Edmund D. Campbell, Washington, D. C. (appointed by this court) for appellant.
Mr. John D. Aldock, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, and Harold H. Titus, Jr., Asst. U. S. Atty., were on the brief for appellee.
Before Burger, McGowan and Tamm, Circuit Judges.
Burger, Circuit Judge, did not participate in the disposition of this case.
PER CURIAM:
Appellant was convicted of carnal knowledge of a female under 16 years of age in violation of 22 D.C.Code § 2801 (1967). He attacks his conviction by means of three allegations of error. Only one, however, requires extended discussion.
Appellant’s only substantial contention of error is that the prosecutor exceeded permissible bounds in his closing argument to the jury. Upon inspection of the record, we find that both the prosecutor and defense counsel offended by the use of improper argument to the jury (see, e.g., Tr. 171, 172, 183, 185, 202, 208). We point out again, as we have in the past, that attorneys should refrain from arguing their personal opinions to the jury as to the veracity of the defendant. Indeed, we had occasion to make this clear recently in Harris v. United States, 131 U.S.App.D.C. 105, 107, 402 F.2d 656, 658 (1968):
Many strong adjectives could be used but it was for the jury, and not the prosecutor, to say which witnesses were telling the truth.
See, also Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Taylor v. United States, - U.S.App.D.C. 188, 413 F.2d 1095 (decided May 1, 1969).
In the particular circumstances of this ease it was improper for the prosecutor to refer to the defendant’s “prevarication” (Tr. 171). It was equally improper, however, for defense counsel to tell the jury that the prosecutrix “is easily a recipient of suggestions from clever enforcement officers,” (Tr. 185) or to inform the jury that “I think he (the prosecutor) bought their testimony” (Tr. 183).
After a careful reading of the closing arguments for both sides, we find that, although both counsel exceeded permissible limits, their statements were not such as to enable us to conclude that the remarks so prejudiced the defendant that a new trial is required. We are buttressed in our conclusion by the fact that this case was basically a “credibility contest” between the defendant and the prosecutrix. The jury believed the prosecutrix’ version and not that of the defendant. We will not alter their choice. Thus, we find, as we did in Harris, that the excessive zeal of counsel did not have a “significant impact on this case.” Harris v. United States, supra, 402 F.2d at 657.
Since we find no reversible error in the district court proceedings, appellant’s conviction must be
Affirmed.
. Appellant also argues that the failure of the trial judge to instruct the jury on the need for corroboration of the prosecutrix’ identification of appellant constitutes “plain error” (Fed.R.Crim.P. 52 (b)). We find no cause for reversal on this ground because no objection was made at trial and no such instruction was requested by defense counsel. Further, we find that there was in fact sufficient evidenee in the record from which the jury could find corroboration. See Bailey v. United States, 132 U.S.App.D.C. 82, 405 F.2d 1352 (1968); Thomas v. United States, 128 U.S.App.D.C. 233, 387 F.2d 191 (1967).
Secondly, appellant argues that failure to instruct on the lesser included offense was reversible error. This claim also fails because appellant did not object to any portion of the charge given and did not request such an instruction.
. Brief for Appellant at 20.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
John E. WASHBURN, Director of Insurance for the State of Illinois, Plaintiff-Appellant, v. Gene RABUN, d/b/a Rabun’s Insurance Agency, Defendant-Appellee.
No. 84-7093.
United States Court of Appeals, Eleventh Circuit.
March 11, 1985.
Edmon L. Rinehart, Montgomery, Ala., for plaintiff-appellant.
Andrew P. Campbell, W. Clark Watson, Birmingham, Ala., for defendant-appellee.
Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and THORNBERRY , Senior Circuit Judge.
Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
GODBOLD, Chief Judge:
This case concerns whether an individual who is a licensed Alabama insurance agent is liable for premiums collected by an Alabama corporation of which he is the sole stockholder, officer and director. There are two potential grounds of liability. First, the licensed agent may be liable under Alabama Code §§ 27-7-l(a) (1975), requiring insurance agents and brokers to be natural persons, and 27-7-36 (1975), providing that all premiums received by an agent “shall be trust funds.” Second, it may be necessary to pierce the corporate veil because, as a matter of law, “the recognition of the corporate form will result in injustice or inequitable consequences.” McKis-sick v. Auto-Owners Insurance Co., 429 So.2d 1030, 1032 (Ala.1983); Cohen v. Williams, 294 Ala. 417, 318 So.2d 279, 281 (1975). Because each theory poses a question of state law which appears to control the outcome of this appeal and there are no clear controlling precedents in the decisions of the Alabama Supreme Court, we certify both questions to the Alabama Supreme Court under Rule 18 of the Alabama Rules of Appellate Procedure.
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA, PURSUANT TO RULE 18, ALABAMA RULES OF APPELLATE PROCEDURE.
I. Style of the case
The style of the case in which this certification is made is John E. Washburn, Director of Insurance for the State of Illinois, Plaintiff-Appellant, versus Gene Rabun, d/b/a Rabun’s Insurance Agency, Defendant-Appellee, case No. 84-7093, United States Court of Appeals for the Eleventh Circuit on appeal from the United States District Court for the Northern District of Alabama.
II. Facts
Rabun has been licensed as an insurance agent by the State of Alabama since 1975 and as a surplus line broker since 1981. He is the sole stockholder, officer and director of Gene Rabun Insurance Company, Inc. (“GRIA”), an Alabama corporation. In 1980 GRIA entered into an agency agreement with Essex Insurance Brokers, Inc. to sell the insurance policies of Amherst Insurance Company in Alabama. Essex was the national general agent of Amherst. In 1981 GRIA entered into a second agency agreement with Essex to sell insurance policies on behalf of Kenil-worth Insurance Company.
In April 1982 GRIA was advised thaf Kenilworth was insolvent and had been placed in liquidation by the Illinois "Department of Insurance. In June 1982 Rabun, as president of GRIA, signed an agreement transferring the Kenilworth business done through GRIA to Amherst. Essex returned premiums paid by GRIA and Rabun used them to obtain replacement coverage for Kenilworth’s policyholders.
This action was brought by James W. Schact, the liquidator of Kenilworth, alleging that Rabun, doing business as GRIA, had violated his fiduciary duty to Kenil-worth by cancelling Kenilworth’s policies and retaining for himself or disbursing to other insurers premiums due Kenilworth. Rabun moved for summary judgment on the ground that he could not be held individually liable, and Schact moved to amend the complaint to join GRIA as co-defendant and to add a count alleging conversion by Rabun. The district court granted the motion for summary judgment, finding no basis for piercing the corporate veil of GRIA and denied the motion to amend because it continued to assert a claim against Rabun individually. Schact moved to alter or amend the judgment, contending that it undermined Alabama’s statutory scheme of individual responsibility of agents and brokers for premiums they collected. The motion was denied. Later the district court entered an order substituting John E. Washburn, Director of Insurance for the State of Illinois, as plaintiff.
III. Questions to be certified
1) Insurance is written in the state of Alabama for an out of state insurance company pursuant to a contract between its general agent and an Alabama corporation doing business as an insurance agency. Because Alabama Code § 27-7-1(a) requires agents and brokers to be natural persons, the corporation does business under the authority of a license issued to its sole stockholder, officer, and director. Alabama Code § 27-7-36 states that all premiums belonging to others received by an agent or broker in transactions under his license shall be trust funds. Does the out of state company’s claim that these two statutes entitle it to a return of premiums or to damages for loss or conversion of premiums state a cause of action against the individual licensee?
2) Does the arrangement described in the first certified question establish as a matter of law that a cause of action is stated against the individual on the theory- of piercing the corporate veil?
3) If a cause of action is not stated as a matter of law against the individual on the piercing of the veil theory, is the existence of the described arrangement a factual element to be considered in determining whether the corporate veil should be pierced?
The particular phrasing used in the certified questions is not to restrict the Supreme Court’s consideration of the issues in its analysis of the record certified in this case. This latitude extends to the Supreme Court’s restatement of the issue or issues and the manner in which the answers are given. See Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir.1968).
The clerk of this court is directed to transmit this certificate, as well as the briefs and record filed with the court, to the Supreme Court of Alabama, and simultaneously to transmit copies of the certificate to the attorneys for the parties.
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_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.
SMITH v. BALTIMORE & O. R. CO.
No. 11703.
United States Court of Appeals Sixth Circuit.
April 16, 1953.
Herbert & Dombey, Columbus, Ohio, for appellant.
Marshall & Smith, Dayton, Ohio, for appellee.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
PER CURIAM.
This appeal from a directed verdict in favor of the defendant in an action brought by the administratrix of a deceased brakeman, who was killed while riding on an engine of the appellee railroad company as the result of a collision with a tractor-trailer at a grade crossing, has .been duly considered upon the record and upon the briefs and oral arguments of the attorneys. The record fails to reveal any substantial evidence of proximate negligence on the part of the railroad company and there was, therefore, no substantial evidence on which the case should have been submitted to the jury upon the issue of negligence.
We find no abuse of discretion on the part of the district judge in refusing to permit appellant to file a second amended petition. We find, moreover, that the failure of the railroad company to equip the locomotive in question with a pilot had no remote connection with the accident resulting in the death of appellant’s intestate. The railroad engine was demolished and numerous cars telescoped and piled up as the result of the collision. The equipment of the locomotive with a pilot could in no aspect have contributed to the prevention of the accident which resulted in the death of appellant’s decedent. The doctrine res ipsa loquitur has no applicability to’the facts of this case, for the reason that the tractor-trailer which collided with the locomotive was not under the control of the appellee.
An examination of the record reveals that, in his elaborate opinion, comprising 35 pages of the typewritten record, the experienced district judge made manifest his well grounded reasons for declining to submit the case to the jury and for granting a directed verdict.
In our opinion, his action was correct and, accordingly, the judgment is affirmed.
. Oral opinion.
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_adminaction
|
117
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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.
UNITED BUILDING & CONSTRUCTION TRADES COUNCIL OF CAMDEN COUNTY AND VICINITY v. MAYOR AND COUNCIL OF THE CITY OF CAMDEN et al.
No. 81-2110.
Argued November 28, 1983
Decided February 21, 1984
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Powell, Stevens, and O’Con-nor, JJ., joined. Blackmun, J., filed a dissenting opinion, post, p. 223.
Steven K. Kudatzky argued the cause and filed briefs for appellant.
N. Thomas Foster argued the cause for appellees. With him on the brief for appellees Mayor and Council of the City of Camden was Lawrence R. Velvet. Irwin I. Kimmel-man, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, and Joseph L. Yannotti, Deputy Attorney General, filed a brief for appellee Department of Treasury of the State of New Jersey.
Wayne S. Henderson filed a brief for the New England Legal Foundation as amicus curiae urging reversal.
Joseph H. Rodriguez and Michael L. Perlin filed a brief for the New Jersey Department of the Public Advocate as amicus curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
A municipal ordinance of the city of Camden, New Jersey, requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. Appellant, the United Building and Construction Trades Council of Camden County and Vicinity (Council), challenges that ordinance as a violation of the Privileges and Immunities Clause, Art. IV, § 2, cl. 1, of the United States Constitution. The Supreme Court of New Jersey rejected appellant’s privileges and immunities attack on the ground that the ordinance discriminates on the basis of municipal, not state, residency. The court “decline[d] to apply the Privileges and Immunities Clause in the context of a municipal ordinance that has identical effects upon out-of-state citizens and New Jersey citizens not residing in the locality.” 88 N. J. 317, 342, 443 A. 2d 148, 160 (1982). We conclude that the challenged ordinance is properly subject to the strictures of the Clause. We therefore reverse the judgment of the Supreme Court of New Jersey and remand the case for a determination of the validity of the ordinance under the appropriate constitutional standard.
On August 28, 1980, the Camden City Council, acting pursuant to a statewide affirmative-action program, adopted an ordinance setting minority hiring “goals” on all public works contracts. Ordinance MC 1650, App. to Juris. Statement A36. The ordinance also created a hiring preference for Camden residents, with a separate 1-year residency requirement triggering eligibility for that preference. Ordinance MC 1650 § 1(5), App. to Juris. Statement A38. As subsequently amended, the ordinance requires that on all construction projects funded by the city:
“The developer/contractor, in hiring for jobs, shall make every effort to employ persons residing within the City of Camden but, in no event, shall less than forty percent (40%) of the entire labor force be residents of the City of Camden.” Ordinance MC 1653 §C(IV)(b), App. to Juris. Statement A56.
The contractor is also obliged to ensure that any subcontractors working on such projects adhere to the same requirement. Ordinance MC 1650 § VIII, App. to Juris. Statement A46.
The amended ordinance was submitted for approval to the Chief Affirmative Action Officer of the New Jersey Treasury Department in November 1980. Following brief administrative proceedings, the ordinance was designated as a state-approved affirmative-action construction program. Appellant, an association of labor organizations representing private employees in the building and construction trades in various New Jersey counties, filed a notice of appeal with the Appellate Division of the New Jersey Superior Court challenging the final determination of the Treasury Department in approving the Camden plan. The New Jersey Supreme Court certified the appeal directly to that court to decide all the issues in the case.
Appellant challenged state approval of the resident-hiring quota as ultra vires, and as unconstitutional under the Commerce Clause and the Privileges and Immunities Clause of Art. IV of the United States Constitution and under the Fourteenth Amendment’s Equal Protection Clause. The New Jersey court sustained the Treasurer’s action as consistent both with state law and the Federal Constitution. Citing Reeves, Inc. v. Stake, 447 U. S. 429 (1980), and Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976), the court held that the resident quota was not subject to challenge under the Commerce Clause because the State was acting as a market participant rather than as a market regulator. 88 N. J., at 338-341, 443 A. 2d, at 158-160. The court also held that the quota did not violate the Privileges and Immunities Clause because it was not aimed primarily at out-of-state residents. “It almost certainly affects more New Jersey residents not living in Camden than it does out-of-state residents. Because the Camden ordinance does not affect The States^] . . . treatment of each other’s residents,’ ... it does not violate any privilege of state citizenship.” Id., at 341-342, 443 A. 2d, at 160. Finally, the New Jersey Supreme Court held that the 1-year residency requirement did not violate the right to travel protected by the Equal Protection Clause, concluding that only a rational basis is required to uphold a residency requirement for city employment. Id., at 342-343, 443 A. 2d, at 160-161.
Appellant then filed this appeal raising the same three constitutional challenges to the resident-hiring quota. We noted probable jurisdiction. 460 U. S. 1021 (1983). Since the Council filed its appeal, however, there have been two significant changes in the posture of the case. First, the Court decided White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983), which held that an executive order of the Mayor of Boston, requiring that at least 50% of all jobs on construction projects funded in whole or in part by city funds be filled by bona fide city residents, was immune from scrutiny under the Commerce Clause because Boston was acting as a market participant rather than as a market regulator. In light of the decision in White, appellant has abandoned its Commerce Clause challenge to the Camden ordinance.
Second, in July 1983 Camden amended its affirmative-action plan. The 1-year residency requirement was deleted, thereby mooting appellant’s equal protection challenge based on that durational requirement. Now, a resident of the city of Camden is defined simply as “any person who resides in the City of Camden.” App. to Brief for Appellees Mayor and Council of the City of Camden A-5. Also, the scope of the ordinance was clarified. It now applies to any construction project “which is funded in whole or in part with City funds or funds which the City expends or administers in accordance with the terms of a grant.” Id., at A-4. Finally, the 40% resident-hiring requirement was changed from a strict “quota” to a “goal” with which developers and contractors must make “every good faith effort” to comply. Id., at A-13.
Because of these changes, the only question left for our consideration is whether the Camden ordinance, as now written, violates the Privileges and Immunities Clause. We first address the argument, accepted by the Supreme Court of New Jersey, that the Clause does not even apply to a municipal ordinance such as this. Two separate contentions are advanced in support of this position: first, that the Clause only applies to laws passed by a State and, second, that the Clause only applies to laws that discriminate on the basis of state citizenship.
The first argument can be quickly rejected. The fact that the ordinance in question is a municipal, rather than a state, law does not somehow place it outside the scope of the Privileges and Immunities Clause. First of all, one cannot easily distinguish municipal from state action in this case: the municipal ordinance would not have gone into effect without express approval by the State Treasurer. As the New Jersey Supreme Court noted in discussing the constitutionality of the minority hiring goals:
“By approving the Camden plan, the State Treasurer has established a minority hiring goal for the City of Camden that operates no differently than every other minority hiring goal established by the State Treasurer. . . . The Council’s constitutional challenge to the Camden minority hiring goal must therefore be interpreted as a challenge to the State Treasurer’s general power to issue affirmative action hiring goals.” 88 N. J., at 330, 443 A. 2d, at 154.
The constitutional challenge to the resident hiring preference, therefore, must also “be interpreted as a challenge to the State Treasurer’s general power” to adopt such a preference. The New Jersey court specifically found that the State Treasurer’s approval of the resident-hiring preference was “not ultra vires or an abuse of discretion.” Id., at 329, 443 A. 2d, at 154.
More fundamentally, a municipality is merely a political subdivision of the State from which its authority derives. Trenton v. New Jersey, 262 U. S. 182, 187 (1923). It is as true of the Privileges and Immunities Clause as of the Equal Protection Clause that what would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the State. Memorial Hospital v. Maricopa County, 415 U. S. 250, 256 (1974); Avery v. Midland County, 390 U. S. 474, 480-481 (1968). Thus, even if the ordinance had been adopted solely by Camden, and not pursuant to a state program or with state approval, the hiring preference would still have to comport with the Privileges and Immunities Clause.
The second argument merits more consideration. The New Jersey Supreme Court concluded that the Privileges and Immunities Clause does not apply to an ordinance that discriminates solely on the basis of municipal residency. The Clause is phrased in terms of state citizenship and was designed “to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.” Paul v. Virginia, 8 Wall. 168, 180 (1869). See also Hicklin v. Orbeck, 437 U. S. 518, 523-524 (1978); Ward v. Maryland, 12 Wall. 418, 430 (1871).
“The primary purpose of this clause, like the clauses between which it is located — those relating to full faith and credit and to interstate extradition of fugitives from justice — was to help fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. For protection of such equality the citizen of State A was not to be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation.” Toomer v. Witsell, 334 U. S. 385, 395 (1948) (footnote omitted).
Municipal residency classifications, it is argued, simply do not give rise to the same concerns.
We cannot accept this argument. We have never read the Clause so literally as to apply it only to distinctions based on state citizenship. For example, in Mullaney v. Anderson, 342 U. S. 415, 419-420 (1952), the Court held that the Alaska Territory had no more freedom to discriminate against those not residing in the Territory than did any State to favor its own citizens. And despite some initial uncertainty, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 386-387 (1929), and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause. See Hicklin v. Orbeck, supra, at 524, n. 8; Toomer v. Witsell, supra, at 397. A person who is not residing in a given State is ipso facto not residing in a city within that State. Thus, whether the exercise of a privilege is conditioned on state residency or on municipal residency he will just as surely be excluded.
Given the Camden ordinance, an out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden. It is true that New Jersey citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens. And it is true that the disadvantaged New Jersey residents have no claim under the Privileges and Immunities Clause. Slaughter-House Cases, 16 Wall. 36, 77 (1873). But New Jersey residents at least have a chance to remedy at the polls any discrimination against them. Out-of-state citizens have no similar opportunity, Austin v. New Hampshire, supra, at 662, and they must not “be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation.” Toomer v. Witsell, supra, at 395. We conclude that Camden’s ordinance is not immune from constitutional review at the behest of out-of-state residents merely because some instate residents are similarly disadvantaged. Cf. Zobel v. Williams, 457 U. S. 55, 75 (1982) (O’Connor, J., concurring in judgment).
Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry. As an initial matter, the Court must decide whether the ordinance burdens one of those privileges and immunities protected by the Clause. Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371, 383 (1978). Not all forms of discrimination against citizens of other States are constitutionally suspect.
“Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.” Ibid.
As a threshold matter, then, we must determine whether an out-of-state resident’s interest in employment on public works contracts in another State is sufficiently “fundamental” to the promotion of interstate harmony so as to “fall within the purview of the Privileges and Immunities Clause.” Id., at 388. See also Canadian Northern R. Co. v. Eggen, 252 U. S. 553, 560 (1920); Blake v. McClung, 172 U. S., at 248.
Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause. Baldwin v. Montana Fish and Game Comm’n, supra, at 387. Many, if not most, of our cases expounding the Privileges and Immunities Clause have dealt with this basic and essential activity. See, e. g., Hicklin v. Orbeck, 437 U. S. 518 (1978); Austin v. New Hampshire, 420 U. S. 656 (1975); Mullaney v. Anderson, 342 U. S. 415 (1952); Toomer v. Witsell, 334 U. S. 385 (1948); Ward v. Maryland, 12 Wall. 418 (1871). Public employment, however, is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling. We have held that there is no fundamental right to government employment for purposes of the Equal Protection Clause. Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 313 (1976) (per curiam). Cf. McCarthy v. Philadelphia Civil Service Comm’n, 424 U. S. 645 (1976) (per curiam) (rejecting equal protection challenge to municipal residency requirement for municipal workers). And in White, 460 U. S., at 211, n. 7, we held that for purposes of the Commerce Clause everyone employed on a city public works project is, “in a substantial if informal sense, ‘working for the city.’”
It can certainly be argued that for purposes of the Privileges and Immunities Clause everyone affected by the Camden ordinance is also “working for the city” and, therefore, has no grounds for complaint when the city favors its own residents. But we decline to transfer mechanically into this context an analysis fashioned to fit the Commerce Clause. Our decision in White turned on a distinction between the city acting as a market participant and the city acting as a market regulator. The question whether employees of contractors and subcontractors on public works projects were or were not, in some sense, working for the city was crucial to that analysis. The question had to be answered in order to chart the boundaries of the distinction. But the distinction between market participant and market regulator relied upon in White to dispose of the Commerce Clause challenge is not dispositive in this context. The two Clauses have different aims and set different standards for state conduct.
The Commerce Clause acts as an implied restraint upon state regulatory powers. Such powers must give way before the superior authority of Congress to legislate on (or leave unregulated) matters involving interstate commerce. When the State acts solely as a market participant, no conflict between state regulation and federal regulatory authority can arise. White, supra, at 206-208; Reeves, Inc. v. Stake, 447 U. S., at 436-487; Hughes v. Alexandria Scrap Corp., 426 U. S., at 810. The Privileges and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony. Hicklin v. Orbeck, supra, at 523-524; Ward v. Maryland, supra, at 430; Paul v. Virginia, 8 Wall., at 180. This concern with comity cuts across the market regulator-market participant distinction that is crucial under the Commerce Clause. It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce. Thus, the fact that Camden is merely setting conditions on its expenditures for goods and services in the marketplace does not preclude the possibility that those conditions violate the Privileges and Immunities Clause.
In Hicklin v. Orbeck, supra, we struck down as a violation of the Privileges and Immunities Clause an “Alaska Hire” statute containing a resident-hiring preference for all employment related to the development of the State’s oil and gas resources. Alaska argued in that case that “because the oil and gas that are the subject of Alaska Hire are owned by the State, this ownership, of itself, is sufficient justification for the Act’s discrimination against nonresidents, and takes the Act totally without the scope of the Privileges and Immunities Clause.” Id., at 528 (footnote omitted). We concluded, however, that the State’s interest in controlling those things it claims to own is not absolute. “Rather than placing a statute completely beyond the Clause, a State’s ownership of the property with which the statute is concerned is a factor — although often the crucial factor — to be considered in evaluating whether the statute’s discrimination against noncitizens violates the Clause.” Id., at 529. See also Baldwin v. Montana Fish and Game Comm’n, 436 U. S., at 385. Much the same analysis, we think, is appropriate to a city’s efforts to bias private employment decisions in favor of its residents on construction projects funded with public moneys. The fact that Camden is expending its own funds or funds it administers in accordance with the terms of a grant is certainly a factor — perhaps the crucial factor — to be considered in evaluating whether the statute’s discrimination violates the Privileges and Immunities Clause. But it does not remove the Camden ordinance completely from the purview of the Clause.
In sum, Camden may, without fear of violating the Commerce Clause, pressure private employers engaged in public works projects funded in whole or in part by the city to hire city residents. But that same exercise of power to bias the employment decisions of private contractors and subcontractors against out-of-state residents may be called to account under the Privileges and Immunities Clause. A determination of whether a privilege is “fundamental” for purposes of that Clause does not depend on whether the employees of private contractors and subcontractors engaged in public works projects can or cannot be said to be “working for the city.” The opportunity to seek employment with such private employers is “sufficiently basic to the livelihood of the Nation,” Baldwin v. Montana Fish and Game Comm’n, supra, at 388, as to fall within the purview of the Privileges and Immunities Clause even though the contractors and subcontractors are themselves engaged in projects funded in whole or part by the city.
The conclusion that Camden’s ordinance discriminates against a protected privilege does not, of course, end the inquiry. We have stressed in prior cases that “[l]ike many other constitutional provisions, the privileges and immunities clause is not an absolute.” Toomer v. Witsell, 334 U. S., at 396. It does not preclude discrimination against citizens of other States where there is a “substantial reason” for the difference in treatment. “[T]he inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.” Ibid. As part of any justification offered for the discriminatory law, nonresidents must somehow be shown to “constitute a peculiar source of the evil at which the statute is aimed.” Id., at 398.
The city of Camden contends that its ordinance is necessary to counteract grave economic and social ills. Spiralling unemployment, a sharp decline in population, and a dramatic reduction in the number of businesses located in the city have eroded property values and depleted the city’s tax base. The resident-hiring preference is designed, the city contends, to increase the number of employed persons living in Camden and to arrest the “middle-class flight” currently plaguing the city. The city also argues that all non-Camden residents employed on city public works projects, whether they reside in New Jersey or Pennsylvania, constitute a “source of the evil at which the statute is aimed.” That is, they “live off” Camden without “living in” Camden. Camden contends that the scope of the discrimination practiced in the ordinance, with its municipal residency requirement, is carefully tailored to alleviate this evil without unreasonably harming nonresidents, who still have access to 60% of the available positions.
Every inquiry under the Privileges and Immunities Clause “must... be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” Toomer v. Wit-sell, supra, at 396. This caution is particularly appropriate when a government body is merely setting conditions on the expenditure of funds it controls. See supra, at 221. The Alaska Hire statute at issue in Hicklin v. Orbeck, 437 U. S. 518 (1978), swept within its strictures not only contractors and subcontractors dealing directly with the State’s oil and gas; it also covered suppliers who provided goods and services to those contractors and subcontractors. We invalidated the Act as “an attempt to force virtually all businesses that benefit in some way from the economic ripple effect of Alaska’s decision to develop its oil and gas resources to bias their employment practices in favor of the State’s residents.” Id., at 531. No similar “ripple effect” appears to infect the Camden ordinance. It is limited in scope to employees working directly on city public works projects.
Nonetheless, we find it impossible to evaluate Camden’s justification on the record as it now stands. No trial has ever been held in the case. No findings of fact have been made. The Supreme Court of New Jersey certified the case for direct appeal after the brief administrative proceedings that led to approval of the ordinance by the State Treasurer. It would not be appropriate for this Court either to make factual determinations as an initial matter or to take judicial notice of Camden’s decay. We, therefore, deem it wise to remand the case to the New Jersey Supreme Court. That court may decide, consistent with state procedures, on the best method for making the necessary findings.
The judgment of the Supreme Court of New Jersey is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
The New Jersey Law Against Discrimination establishes a comprehensive affirmative-action program in the awarding of public works contracts. N. J. Stat. Ann. §§ 10:5-31 to 10:5-38 (West 1976). Any contractor, subcontractor, or firm seeking such contracts must guarantee compliance with an affirmative-action program approved by the State Treasurer. The Treasurer is empowered to promulgate specific affirmative-action requirements based on “the percentage of population of minority groups in the
State or areas thereof.” § 10:5-36(a). Alternatively, the law permits municipal and state agencies to adopt and administer their own affirmative-action plans. § 10:5-36(c). Such plans must be submitted to the State Treasurer to ensure that each plan conforms to the statutory and administrative requirements, and “establishes an employment goal which is not lower than the applicable goal established by” the Treasurer. N. J. Admin. Code 17:27-6.5 (1982).
The specific scope of the ordinance was stated as follows:
“Wherever the City of Camden spends funds derived from any public source for construction contracts or where the City of Camden confers a direct financial benefit upon a party, but excluding the grant of a property tax abatement, the fair market value of which exceeds $50,000.00, the provisions of this ordinance shall apply .... The provisions of this ordinance shall also apply to the development and construction of all residential housing of four (4) units or less.” Ordinance MC 1650 § II, App. to Juris. Statement A38-A39.
Appellant argued initially that the final sentence of this section extended the reach of the city’s ordinance to purely private construction in which municipal funds were not involved. Appellees claimed that the ordinance was never so interpreted and has only been applied to projects funded in whole or in part by city funds or funds administered by the city. In light of subsequent amendments, see infra, at 213-214, the scope of the ordinance is no longer in issue.
The Council has at least some members who reside outside New Jersey.
The Council also challenged approval of the minority hiring goals as ultra vires the State Treasurer’s authority and as a violation of equal protection. The New Jersey court rejected both arguments, finding approval of the goal within the clear scope of the State Treasurer’s delegated authority and the goal itself constitutional under Fullilove v. Klutznick, 448 U. S. 448 (1980). 88 N. J., 317, 326-328, 330-337, 443 A. 2d 148, 152-153, 154-158 (1982). The Council has not appealed from that ruling.
See n. 3, supra.
In White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204, 214-215, n. 12 (1983), we specifically declined to pass on the merits of a privileges and immunities challenge to the Mayor’s executive order because the court below did not reach the issue.
As noted by the Supreme Court of New Jersey, this case was brought as a challenge to the State’s administrative approval of the Camden ordinance, and not as a direct challenge to Camden’s adoption of it. 88 N. J., at 324, 443 A. 2d, at 151.
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
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.
Glenn Roy MILLER, Appellant, v. R. L. EKLUND, etc., et al., Appellee.
No. 20365.
United States Court of Appeals Ninth Circuit.
Aug. 8, 1966.
Glenn Roy Miller, in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James E. Kline, Deputy Atty. Gen., Los Angeles, Cal., for respondent.
Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
On March 6, 1960, Miller was sentenced, following his conviction by a jury in California Superior Court, on two counts of armed robbery (Calif.Pen.Code § 211). He seeks habeas corpus. The trial court denied the writ without issuing an order to show cause and without a hearing.
I.
Unlawful arrest. Miller says that he was arrested without a warrant and without probable cause. “The arresting officer was basing his probable cause on informer information.” It appears that a preliminary hearing was held, at which he was represented by counsel, that the magistrate found probable cause, and that he was held for trial. Standing alone, these allegations do not support a claim for federal habeas corpus. Fernandez v. Klinger, 9 Cir., 1965, 346 F.2d 210, 211-212; Latimer v. Cranor, 9 Cir., 1954, 214 F.2d 926, 928; Hampson v. Smith, 9 Cir., 1946, 153 F.2d 417, 418.
II.
Unlawful search. Miller asserts that the unlawful arrest was followed by an unlawful search of his home. He says that at the preliminary hearing two items of clothing, a brown cap and a gray plaid jacket, “that was taken from the defendant during a secret interrogation” and were the fruits of the unlawful arrest, were introduced. He does not allege that these or any items were taken from his home during the search. He does allege that when he was arrested, he was wearing the jacket. Just where or when the police obtained his cap is not stated. It would appear, in view of the language we have quoted, that he probably wore the cap when taken to jail. He also says that the victims of the robbery identified the cap and jacket in a one man lineup during secret pre-trial investigation, and testified about them at the preliminary examination. So far as appears from the petition, neither item was used against him at the trial.
The use, as evidence, of items of clothing worn by the accused when arrested does not, in our opinion, violate any of his federal constitutional rights. His clothing was no more the “fruit” of an unlawful arrest than he was.
At the trial, fingerprints taken from Miller when he was booked at the jail were used against him. This did not deprive him of any federal constitutional right. Cf. Schmerber v. State of California, 1966, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908.
III.
Interrogation. Miller says that, after his arrest, he was interrogated without counsel, not advised of his right to counsel, and was denied counsel although he asked to call his lawyer. He states that when arrested at his home, he was “pistol-whipped,” handcuffed, kicked in the stomach and “knocked down and out” because he would not sign an incriminating statement, and that he was later interrogated repeatedly. It does not appear, however, that he ever gave an incriminating statement,. or that, if he did, it was used against him. Assuming the truth of these charges, they do not entitle him to relief in federal habeas corpus. Misconduct by the police, however reprehensible, is not a ground for federal habeas corpus if it does not contribute to a conviction.
IV.
Lack of counsel. Miller says that he had no counsel when brought before a magistrate. However, all that he alleges is that bail was set and he was bound over to preliminary examination. He did have counsel at that examination. He pleaded not guilty. These facts do not entitle him to federal habeas corpus. Wilson v. Harris, 9 Cir., 1965, 351 F.2d 840, 844-845; Marcella v. United States, 9 Cir., 1965, 344 F.2d 876, 881-882.
He then discharged his counsel — the public defender — and proceeded to trial in pro. per. This was done with the permission of the court. There is no allegation that the court did not then determine that his decision was voluntary within the rule in Johnson v. Zerbst, 1938, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461. The Los Angeles County Superior Court, where Miller was tried, operates on the master calendar system. Miller first moved to dismiss his counsel before Judge Drucker, who denied the motion. He again made the same motion before Judge Wheatcraft, which was granted. He came to trial before Judge Beck, who accepted without further inquiry Miller's decision to represent himself. This was proper; absent some motion on Miller’s part, or other facts indicating to the contrary, Judge Beck was entitled to assume, as he evidently did, that Judge Wheat-craft, in granting the motion, had fully performed his constitutional duty.
Miller had a right to act as his own counsel if he chose to do so. So far as his allegations of fact are concerned, all that they show is that he did so choose. These allegations do not, without more, raise a federal question.
V.
Confrontation. Miller says that the arresting officer and an alleged confederate were not called as witnesses by the prosecution. He does not allege that he did not know of their existence or that he asked to call them, much less that any such request was denied. The prosecution is not obliged to call every known witness. Moreover, Miller does not allege that the testimony of either of the witnesses would have been of any assistance to him. His only claim is that he had no chance to cross-examine them. This is a far cry from Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065,13 L.Ed.2d 923, on which Miller relies.
VI.
Self-incrimination. Miller took the stand in his own behalf. He says that he “testified to facts that was treated as a confession by the prosecution and the Trial Court.” The contention apparently is that this violated his privilege against self-incrimination. The claim is frivolous.
Affirmed.
. His conviction was affirmed on appeal, People v. Miller, D.C.A.Cal.1961, 190 Cal.App.2d 361, 11 Cal.Rptr. 920. His conviction became final 90 days thereafter, or on August 14, 1961 (see People v. Polk, Cal.1965, 63 Cal.2d 443, 47 Cal.Rptr. 1, 406 P.2d 641.) His conviction thus became final after the decision in Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Linkletter v. Walker, 1965, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601.
. We are not to be understood to hold that a mere conclusionary statement that the arrest was unlawful, or without probable cause, is a sufficient allegation to require the habeas corpus court to act upon it. We do not reach that question.
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Frederick MARSH, Defendant, Appellant.
No. 82-1888.
United States Court of Appeals, First Circuit.
Argued Feb. 10, 1984.
Decided Oct. 4, 1984.
Stephen M. Perry, Boston, Mass., by appointment of the Court, with whom David M. Roseman, Casner, Edwards & Roseman, John Russell, Herlihy & Russell, Raymond Gillespie, Daniel Kelleher, Michael O’Laughlin, Anne Mackin, Stephen Morse, Guterman, Horwitz, Rubin & Rudman, and Martin Gideonse, Boston, Mass., were on brief, for defendants, appellants.
Tobin Harvey, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., and John C. Doherty, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.
Before COFFIN and ALDRICH, Circuit Judges, and GIGNOUX, Senior District Judge.
This opinion also covers Nos. 82-1889, United States v. Anouncio Archbold; 82-1890, United States v. Jean Archbold; 82-1892, United States v. Jose Ospina; 82-1893, United States v. Victor Figueroa; and 82-1921, United States v. Augustin Archbold.
Of the District of Maine, sitting by designation.
COFFIN, Circuit Judge.
After our remand, the district court, 747 F.2d 7 clarified its earlier decision, affirming that its conclusion that defendants knew that the destination of the contraband was the United States was based on evidence which it deemed sufficient to prove such knowledge beyond a reasonable doubt. We therefore proceed to assess the sufficiency of the evidence under this proper and rigorous standard.
Admittedly the evidence is circumstantial. There is no smoking gun. But, looked at starkly, taking evidence and inferences favorable to the prosecution, the situation appears as follows. The seven defendants were members of a crew who, with a Danish captain, manned a fairly large (116 foot) “mother ship” for some 19 days, from Colombia to a point 270 miles off the northeast coast of the United States, southeast of Nantucket Island. The ship was headed west, toward the continental United States, when it was apprehended. Of this crew a substantial proportion must have stood watches and been acquainted with the general course of their progress. The crew lived, slept, and ate in a common area. There was no apparent reason for secrecy or concealment, either of progress or destination.
Under these circumstances, to conclude that, after such a period of time, among such a small group, with knowledge of being so close to and headed toward the only large, as well as most affluent, market area, i.e., mainland United States, as opposed to New Brunswick or Nova Scotia, Canada, a finder of fact could not reasonably have found that all defendants knew that the GRIMURKAMBAN’s destination was the United States, seems to us beyond the pale of realism. On the contrary, it seems to us that in such an informal setting, after almost three weeks at sea, the chief topic of interest would be the where and when of the end of the voyage, and that the absence of logical alternatives would sufficiently indicate the United States.
We therefore affirm the judgments below in the cases we remanded to the district court.
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_respond1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).
Johnny HONEYCUTT, Petitioner-Appellee, v. Benjamin WARD, Commissioner of Corrections for the State of New York, Respondent-Appellant.
No. 1149, Docket 79-2050.
United States Court of Appeals, Second Circuit.
Argued May 31, 1979.
Decided Nov. 5, 1979.
Michael G. Berger, New York City (Pryor, Cashman, Sherman & Flynn, New York City, of counsel), for petitioner-appel-lee.
Paul E. Dahlman, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of N. Y., George D. Zuckerman, Asst. Sol. Gen., Arlene R. Silverman, Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.
Before MOORE, FRIENDLY and FEIN-BERG, Circuit Judges.
. The parties have stipulated that the 1971 and 1976 convictions are not at issue in this appeal.
MOORE, Circuit Judge:
This is an appeal by the Commissioner of Corrections for the State of New York (hereinafter the “State”), from a judgment of the United States District Court for the Southern District of New York, granting appellee Johnny Honeycutt’s petition for a writ of habeas corpus, 28 U.S.C. § 2254. The petition was granted on the theory that a sentence imposed after a 1954 conviction in New York County, upon a plea of guilty to armed robbery in the second degree, was unlawfully enhanced to fifteen years to life imprisonment as a result of a fourth felony information filed pürsuant to former New York Penal Law § 1942 and § 1943. The petitioner admitted that he was the same person who had been convicted of the three felonies specified in the information. All three of the prior felony convictions were out-of-state convictions. The basis of Hon-eycutt’s habeas corpus petition, made on May 16, 1978, is, according to his court-appointed attorney, that a 1949 Oklahoma conviction, a necessary predicate to Honey-cutt’s fourth offender sentence, was obtained in alleged violation of Honeycutt’s constitutional right to counsel.
In 1926 the Legislature of the State of New York enacted New York Penal Law § 1942, reading in pertinent part as follows:
Ҥ 1942. Punishment for fourth conviction of felony. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies,, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony, within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life. If
The purposes of the statute were to deter potential recidivists by making the risks too great and to protect the citizens of New York State from persons whose records had shown them to be frequently addicted to crime. Since the State-Federal judicial relationship often presents delicate issues and Federal courts should be reluctant to use their power to override the decisions of State courts rendered after affording due process, the record before us as the basis for any decision assumes more than ordinary importance.
The record discloses that the petitioner at the age of 13 was imprisoned for some offense the nature of which is not revealed. In 1949, petitioner pleaded guilty in Oklahoma to robbing a grocery store “because I [petitioner] was guilty”. A two-year sentence resulted. In 1951, in Oklahoma, petitioner was convicted and sentenced to eighteen months imprisonment for passing a government obligation with a forged endorsement. In 1952, in California, petitioner was convicted upon a jury verdict of forgery and sentenced to one year. In the New York County Court of General Sessions on March 15, 1954, petitioner pleaded guilty to the charge of armed robbery in the second degree, after admitting to the sentencing judge that he had possessed the gun used in the robbery and that one shot had been fired. On August 11, 1954, petitioner was sentenced for this crime as a fourth felony offender to 15 years to life, pursuant to then effective New York Penal Law § 1942. Petitioner was represented by counsel both on plea and on sentence.
However, only some 13 years of this sentence were served because in 1967 petitioner was released on parole. In 1971, while on parole from his 1954 conviction, petitioner was indicted for murder and pleaded guilty to manslaughter, first degree, for which he served a five-year sentence. In 1976 petitioner was again paroled on his 1954 sentence. However, in the same year, he was convicted of attempted possession of a forged instrument, the sentence being IV2 to 3 years. That sentence has been fully served, and Honeycutt remains incarcerated solely by virtue of the 1954 sentence.
After bringing several pro se petitions in the New York courts, Honeycutt challenged the use of the Oklahoma conviction as a predicate felony in a coram nobis application, which was denied by the Supreme Court, New York County, on March 3, 1976. On August 5, 1976, leave to appeal was denied by the Appellate Division, First Department, as was leave to appeal from the Appellate Division’s ruling on September 23, 1976, by the New York Court of Appeals. Subsequently, Honeycutt commenced the instant habeas corpus proceeding, claiming that the most ancient of his convictions — the 1949 Oklahoma conviction — was obtained in violation of his Sixth Amendment right to counsel and that, therefore, he should not have been sentenced as a fourth felony offender in 1954.
THE HEARING BEFORE THE TRIAL COURT
The trial court held evidentiary hearings on January 17, February 16 and March 9, 1979, on petitioner’s § 2254 petition. Petitioner testified in his own behalf as to the events of thirty years ago. He said that the Oklahoma judge in 1949 never said anything about his right to have a lawyer and “never mentioned a lawyer to me”. Petitioner, however, did admit on cross-examination that he had said in an affidavit that “Although I may have been advised of my right to counsel, I do not recall waiving my rights”.
For the hearings, both counsel tried to obtain such records, if any, as might be in Oklahoma. A court record from Oklahoma was secured and introduced which reveals certain facts with respect to the 1949 conviction under attack. In refutation of petitioner’s 1979 memory of the 1949 courtroom scene a court order appointing counsel shows that:
“Now on this 10th day of June, 1949, it appearing to the undersigned Judge of the District Court of Oklahoma County, that: The above named defendant appeared for arraignment without aid of counsel and was informed by the Judge that said defendant was and is entitled to counsel as a matter of right; that said defendant has advised the Court that defendant desires counsel but was and is unable to employ such aid.
It is therefore ordered that Chas. W. Moss, Public Defender of Oklahoma County, represent said defendant in the above styled cause until further order of the Court.”
It is significant that the order is signed in long hand by A. P. Van Meter, District Judge, and there is no claim that the signature is a forgery. The order states facts which could only have resulted from the personal appearance of petitioner before the judge. The judge noted that petitioner appeared “without aid of counsel”. Petitioner was “informed by the Judge that said defendant [petitioner] was and is entitled to counsel as a matter of right”; and that “defendant [petitioner] has advised the Court that defendant desires counsel but was and is unable to employ such aid”. Thereupon the judge appointed the Public Defender of Oklahoma County to represent petitioner until further order. Petitioner pleaded guilty on June 10, 1949 because, as he said, he “was guilty” and on the same day a judgment of conviction and sentence was signed by the judge.
THE OPINION BELOW
The trial court, without making specific findings, merely said “On all the papers now before me and on all the evidence presented at the hearings I have held, I find that petitioner was not represented by counsel when he pleaded guilty and was sentenced in Oklahoma County, Oklahoma on June 10,1949”. He, therefore, concluded that the use of that conviction as a predicate for sentencing petitioner as a fourth felony offender in New York, was “constitutionally impermissible” citing Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
In brief, the trial judge based his finding of non-representation upon the denial of representation by the petitioner, whose credibility was seriously affected by his earlier violations of his parole commitments and by his immediate return to his criminal activities. In contrast the district judge must have impliedly concluded that the Oklahoma judge put his name to a series of events which he stated had occurred in his presence but which were wholly false. The fact that the Public Defender’s name had been pre-printed in the Oklahoma order appointing counsel is not of any moment. The name of the Public Defender would not change from case to case and the appointment of a Public Defender probably would have been not an infrequent occurrence. Nor is the fact that judgment and sentence were the same day of any significance. Petitioner knew he was guilty and said so. Further time for investigation of the law and facts was not required. Additional time for conferences would not have changed petitioner’s confessed guilt.
Although Rule 52(a) of the Rules of Civil Procedure provides, in part, that in actions tried without a jury: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” [derived from equity practice], the Supreme Court in United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948) held:
“The findings were never conclusive, however. A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 395, 68 S.Ct. at 542. (footnote omitted).
A most detailed and helpful explication of Rule 52(a) in this Circuit is that of the late Judge Frank:
“Where a trial judge sits without a jury, the rule varies with the character of the evidence: (a) If he decides a fact issue on written evidence alone, we are as able as he to determine credibility, and so we may disregard his finding, (b) Where the evidence is partly oral and the balance is written or deals with undisputed facts, then we ignore the trial judge’s finding and substitute our own, (1) if the written evidence or some undisputed fact renders the credibility of the oral testimony extremely doubtful, or (2) if the trial judge’s finding must rest exclusively on the written evidence or the undisputed facts, so that his evaluation of credibility has no significance, (c) But where the evidence supporting his finding as to any fact issue is entirely oral testimony, we may disturb that finding only in the most unusual circumstances.” Orvis v. Higgins, 180 F.2d 537, 539-40 (2d Cir.) cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950).
Section (b)(1) of this quotation directly applies to the Honeycutt situation: Judge Van Meter’s 1949 signed court order appointing counsel is a piece of undisputed written evidence that renders Honeycutt’s belated and self-serving oral testimony extremely doubtful.
In Webster v. Estelle, 505 F.2d 926 (5th Cir. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975), the Fifth Circuit had before it a situation factually very similar to that presented here — uncorroborated testimony of a petitioner in contrast to documentary records. The court reversed the granting of the writ as a matter of law, saying:
“[T]he District Court gave insufficient weight to the State’s documentary evidence. Official records are entitled to a presumption of regularity.” 505 F.2d at 929-30.
Similarly, in United States ex rel. Barnes v. Fay, 219 F.Supp. 152, 155 (S.D.N.Y.1963), the court said:
“[T]he relator’s bare allegations as to the events of thirty-five years ago, are insufficient, standing alone, to overcome the presumptive validity of the court records
We cannot accept the proposition that a judge in Oklahoma signed his name to a state of facts which never occurred and that he was not mindful of the Constitution of his own state requiring appointment of counsel. The very form of the order indicates compliance with these constitutional requirements. In contrast, the acceptance of petitioner’s uncorroborated, self-serving claim, belatedly made some fifteen years after he claims his fellow prisoners had made him aware of his rights, leads inescapably to the conclusion that the trial court’s conclusions on the law and the facts are clearly erroneous.
Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), relied upon by the trial court and appellee to support the conclusion that petitioner’s 1949 conviction was “constitutionally impermissible”, is not dispositive here. In Burgett the judgment specifically stated that the defendant appeared “without Counsel”. 389 U.S. at 112, 88 S.Ct. 258. Similarly, in United States ex rel. Lasky v. LaVallee, 472 F.2d 960 (2d Cir. 1973), the words “by his attorney” were excised, indicating that the defendant was without counsel.
Furthermore, the burden of proof is on Honeycutt to overcome the strong presumption of regularity in state judicial proceedings. His own self-serving declarations do not meet this burden.
The State also claims that it was irrevocably prejudiced by Honeycutt’s undue delay in bringing this petition. Under the circumstances of this case, Honeycutt’s at least fifteen-year delay has substantially deprived the State of the opportunity to rebut Honeycutt’s allegations. Since Honeycutt has advanced no substantial explanations for his long and prejudicial delay on this additional ground, his petition may be dismissed.
Rule 9(a) of the Rules Governing § 2254 Cases provides:
“Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition-by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.”
The Advisory Committee Note explaining Rule 9(a) indicates that it was designed to deal with the type of situation presented here. The Advisory Committee Note states:
“This rufe is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims .
. * * * * * *
The grounds most often troublesome to the court are ineffective counsel, denial of right of appeal, plea of guilty unlawfully induced, use of a coerced confession, and illegally constituted jury. When they are asserted after the passage of many years, both the attorney for the defendant and the state have difficulty in ascertaining what the facts are. It often develops that the defense attorney has little or no recollection as to what took place and that many of the participants in the trial are dead or their whereabouts unknown. The court reporter’s notes may have been lost or destroyed, thus eliminating any exact record of what transpired.
* * * # * *
Subdivision (a) is not a statute of limitations. Rather, the limitation is based on the equitable doctrine of laches. ‘Laches is such delay in enforcing one’s rights as works disadvantage to another’. 30A C.J.S. Equity § 112, p. 19.
* * * * * *
The standard used for determining if the petitioner shall be barred from asserting his claim is consistent with that used in laches provisions generally. The petitioner is held to a standard of reasonable diligence. Any inference or presumption arising by reason of the failure to attack collaterally a conviction may be disregarded where (1) there has been a change of law or fact (new evidence) or (2) where the court, in the interest of justice, feels that the collateral attack should be entertained and the prisoner makes a proper showing as to why he has not asserted a particular ground for relief.”
The instant case exemplifies the situation which Rule 9(a) seeks to avoid. Honeycutt filed his petition almost thirty years after the challenged trial. His claim that he was not represented by counsel falls within the ambit of those in which “both the attorney for the defendant and the state have difficulty in ascertaining what the facts are”. No transcript of the Oklahoma proceeding is available. Further, counsels’ efforts to locate judge or counsel who could refute or substantiate Honeycutt’s testimony have been unavailing. Thus, the long delay has prejudiced the State in its ability to respond to the petition.
Honeycutt claims that he delayed in filing his petition because there was no procedural device in New York to challenge the constitutionality of his Oklahoma conviction until the mid-1960’s. This argument must be rejected. It is true that under N.Y. Penal Law § 1942, in effect in 1954, a defendant could not challenge in a State court the propriety of a predicate felony. See, e. g., People v. Wilkins, 28 N.Y.2d 213, 219, 321 N.Y.S.2d 87, 91, 269 N.E.2d 803, 806 (1971) (“Prior to [the statutory amendment of] 1964, a challenge to the constitutionality of a previous New York conviction had to be made by a writ of error coram nobis in the court where the defendant had been convicted, and no procedure was available in New York to challenge out-of-state convictions.”) However, in 1964, the New York statute under which sentence was imposed was amended by § 470-a, of the N.Y. Code of Criminal Procedure, to permit a defendant, as a matter of state law, to attack the constitutionality of his prior convictions. That amendment was subsequently held to be retroactive. People v. Broderick, 24 App.Div.2d 638, 262 N.Y.S.2d 188, 190 (2d Dept. 1965); accord, People v. Rainey, 25 App.Div.2d 657, 267 N.Y.S.2d 973, 975 (2d Dept. 1966). Thus, Honeycutt had a remedy available in the New York courts by 1965.
Honeycutt further attempts to explain his delay by claiming that he only learned of the existence of a right to counsel when serving his 1954 New York sentence. The Supreme Court did not explicitly recognize a defendant’s constitutional right to counsel until 1963, the year of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). At the hearing on January 17 before the trial court, Honeycutt testified:
“The only time I found out that a person should have an attorney, I was in a state prison in New York on a ’54 conviction about three years after I got that conviction in ’54.”
Thus Honeycutt knew of the existence of a right to counsel more than fifteen years prior to institution of this suit. He should not be heard to claim that his delay was justified.
Under the facts of this case, we also find that the equitable doctrine of laches should apply under Rule 9(a). Honeycutt has waited more than fifteen years to raise his claim, in circumstances where the detailed factual reconstruction necessary to test the validity of the claim would be most difficult, if not impossible. See Johnson v. Riddle, 562 F.2d 312 (4th Cir. 1977). While it is important that one convicted of crime in violation of constitutional principles should be accorded relief, it is also important that reasonable diligence be required in order that litigation may one day be at an end. Rule 9(a) guards the state’s legitimate expectation that it will not be called upon, without due cause, to defend the integrity of convictions that occurred many years ago, where records and witnesses are no longer available. See Cavett v. Ellis, 578 F.2d 567, 570 (5th Cir. 1978).
In summary, it is impossible to compare Honeycutt’s delayed claim as to 1949 events which he does not buttress with supporting testimony to give credence to his self-serving assertions against a written court order, required by the Oklahoma Constitution and having every appearance of regularity and not have a “definite and firm conviction that a mistake has been committed”. United States v. Gypsum, supra, 338 U.S. at 395, 68 S.Ct. at 542.
The judgment of the district court granting the writ of habeas corpus is reversed.
. Since at least 1931, the Oklahoma Constitution has required the appointment of counsel to represent indigents:
“[U]nder the Constitution of Oklahoma the defendant is entitled to have counsel appointed by the court, provided he is unable to pay for the same. Section 2929, O.S.1931 (22 Okl.St.Ann. § 464), reads as follows:
‘If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him’.” Richardson v. State, 61 Okl.Cr. 278, 67 P.2d 804, 805 (1937).
Moreover, before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) was decided, Oklahoma state courts construed Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), as requiring appointment of counsel under the federal constitution. See, e. g., Ex parte Cornell, 87 Okl.Cr. 2, 193 P.2d 904 (1948); Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18 (1939).
. The amendment was carried forward in substance by § 400.20 of the current N.Y. Criminal Procedure Law. (McKinney 1971).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Marie H. HAMM, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. William HAMM, Jr., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Nos. 17121, 17122.
United States Court of Appeals Eighth Circuit.
Dec. 30, 1963.
Joseph A. Maun, of Maun, Hazel, Green, Hayes, Simon & Aretz, St. Paul, Minn., Lawrence J. Hayes, St. Paul, Minn., on the brief, for petitioners.
Ralph A. Muoio, Attorney, Department of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Tax Division, Washington, D. C., John B. Jones, Jr., Lee A. Jackson, Donald P. Horwitz, Attorneys, Department of Justice, Washington, D. C., on the brief, for respondent.
Before SANBORN and BLACKMUN, Circuit Judges, and STEPHENSON, District Judge.
BLACKMUN, Circuit Judge.
The Tax Court has upheld asserted deficiencies in the 1953 federal gift taxes of Marie H. Hamm and William Hamm, Jr., in the respective amounts of $317,-281.96 and $456,138.53. Judge Pierce’s opinion, 79 pages in length and not reviewed by the full court, is T. C. Memo 1961-347. Each taxpayer has petitioned for review.
The Hamms are husband and wife and residents of Minnesota. Each filed a timely gift tax return for 1953. By these returns they consented, as § 1000(f) of the Internal Revenue Code of 1939 permitted, that gifts made by either of them to third persons during the year might be considered as having been made one-half by each.
The reported 1953 gifts were made by Mr. Hamm to two trusts created under separate declarations executed by him on July 18 of that year. The first gift to each trust consisted of $40,000 in cash at its inception. The second gift to each trust was made on December 30, 1953; it consisted of 130 shares, for one trust, and 133% shares, for the other trust, of common stock of United Properties, Incorporated. This stock was valued at $100 per share in Mr. Hamm’s return. The division of the gifts between husband and wife; the assertion, under § 1004(a) (2) (B), of deductions for a claimed charitable portion of the gifts; and the taking into account of net gifts made in prior tax years, resulted in the payment of 1953 gift taxes upon the returns as filed of approximately $8,600 for Mrs. Hamm and $13,200 for Mr. Hamm.
The substantial deficiencies upheld by the Tax Court are attributable (a) to the upward adjustment of the value of the United common from the returned figure of $100 per share to $8,506.40 per share and (b) to the disallowance of the .deductions for the claimed charitable portions.
The charitable feature is not in contest on this review so we are confronted with only the valuation issue. As a consequence, the provisions of the trust instruments are of no great import here.. It suffices merely to say that the declaration for the one trust provides that net income until March 1, 1964, is to be paid to The Hamm Foundation, Inc.; that from March 1, 1964, through 1969, net income is to be accumulated; and that on January 1, 1970, the trust corpus and the accumulations are to be distributed to the taxpayers’ son Edward, if living, or, if not, to issue or other named alternate beneficiaries. The declaration for the second trust contains parallel provisions except that the taxpayers’ son William is the principal individual beneficiary.
United is a Minnesota corporation organized in December 1937. Shareholders of Theo. Hamm Brewing Company, Saint Paul, caused United to be formed so that it could hold real estate and other property formerly held by the brewing company. Later United acquired additional real estate and other interests.
At all times from its inception and through 1953, United’s issued and outstanding stock consisted of 1,000 common shares and 35,000 cumulative preferred shares. Each class had a $100 par value. Neither was listed on any stock exchange or traded over the counter. No sale of United stock was effected prior to the trial.
When United was formed both its common and preferred shares were issued two-fifths to Mr. Hamm and one-fifth to each of his three sisters. By December 1953 the holdings of United’s stock had become more diversified in the sense that some shares were then held by children and trustees. The 2-1-1-1 ratio as between family branches, however, remained. The December gifts by Mr. Hamm did not change this family ratio although they eliminated his personal holding of common.
United’s directors for the five years preceding the gifts consisted of Mr. Hamm, the husbands of two of the sisters, and the taxpayers’ attorney; its officers were the same two brothers-in-law, the attorney, and two others.
United’s articles provide that its voting power is vested solely in the common ; that holders of the preferred have no right to vote for any purpose; that the preferred is entitled to semi-annual dividends of 3%% which are cumulative without interest; that no dividend on common may be paid until all delinquent dividends on preferred have been paid; that in the event of liquidation holders of preferred have preference over common shareholders to the extent of the preferred’s par value plus all unpaid dividends; and that any or all of the outstanding preferred is redeemable at any time at the option of the directors at $105 per share plus accumulated dividends.
The amount necessary to satisfy the annual dividend requirement on the preferred is $245,000. Some preferred dividends, always less than this annual requirement, were paid by United through its fiscal year 1941 but none was paid thereafter. As of December 31,1953, the accumulated and unpaid preferred dividends were $3,685,500. No dividend was ever paid on the common.
On the date of the gifts United held either title or long term leases for 68 parcels of real estate, most of which were improved properties located in the City of Saint Paul. It also then held all or substantially all the shares of 8 corporations with businesses located in or near Saint Paul. Two of these were each the parent of a wholly owned subsidiary. United also held cash, marketable securities, notes, contracts, and mortgages receivable, interests in oil and gas properties, and other assets. Its operations consisted primarily of holding and managing its real properties, holding the shares of its subsidiaries and its oil and gas interests and other properties, and receiving the rents, dividends and other income from these investments. It did. not manufacture or produce any product. It did not act as a dealer in real estate, securities, or other property. It seldom sold any investment.
The Tax Court found that United’s underlying net assets had a fair market value on the date of the gifts of $18,-870,456. This finding is not challenged by the taxpayers here. The details of this computation of underlying asset value are set forth at length in the Tax Court’s opinion and they need not be repeated here.
From this underlying net asset value figure the Tax Court deducted a total of $7,185,500, consisting of $3,500,000 for the par value of the outstanding 35,000 preferred shares plus the $3,685,500 preferred dividend arrearages. This left $11,684,956 as that portion of the underlying net asset value allocable to the 1,000 shares of outstanding common, or $11,684.96 for each common share.
It will be observed that the Tax Court, in determining the capital amount attributable to the preferred, did not include an additional $5 per share for the premium required if the preferred were to be redeemed. If this $5 increment, or $175,000, were taken into account, then the computation results in an underlying net asset value of the $11,509.96 ($11,684.96 less $175) allocable to each share of common.
As stated above, the Commissioner in his statutory notice of deficiency had determined that the value of the gift common was $8,506.40 per share. The Tax Court, obviously directing itself to this determination by the Commissioner, and in view of its finding of underlying net asset value per share of common, made an ultimate finding that the value of the gift common “was, at the time of the gifts, not less than $8,506.40 per share” and held that the taxpayers had failed to establish error as to this determination of value.
The taxpayers emphasize that the gifts were minority interests in the voting stock and that the usual problems incident to the valuation of a minority interest in a closely held corporation are made even more complicated here by (1) the nature of the underlying assets, viz., a large number of real estate parcels concentrated in one area and stocks of wholly owned subsidiaries which also have never been the subject of a sale; (2) the existence of the preferred and its substantial dividend arrearages; and (3) United’s obligations under long term leases for a total rent liability in excess of $24,000,000, the existence of which renders liquidation impossible. The taxpayers then raise four points: (1) that the Tax Court failed to find the facts specially and to state separately its conclusions of law thereon; (2) that it failed to make any finding as to the actual market value of United Common; (3) that it failed to make any finding as to the value of a minority interest in the United Common; and (4) that the evidence compelled a finding that the market value of a minority interest in that stock was $735 per share.
Before discussing these points we note the principles, most of them well established, to which the parties refer. A presumption of correctness attends the Commissioner’s deficiency determination and, apart from fraud, the taxpayers have the burden of showing it to be incorrect. Wickwire v. Reinecke, 275 U.S. 101, 105, 48 S.Ct. 43, 72 L.Ed. 184 (1927); Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933). The clearly erroneous standard applies to findings made by the Tax Court. Idol v. Commissioner, 319 F.2d 647, 651 (8 Cir.1963). When a gift is made in property its value at the date of the gift governs for gift tax purposes. Section 1005 of the 1939 Code. For stocks this value is fair market value. Regulations 108, § 86.19. “Fair market value is the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under compulsion to buy nor to sell and both being informed”. O’Malley v. Ames, 197 F.2d 256, 257 (8 Cir. 1952); Arc Realty Co. v. Commissioner, 295 F.2d 98, 103 (8 Cir. 1961). Valuation of stock for tax purposes is a matter of “pure fact”. Penn v. Commissioner, 219 F.2d 18, 20-21 (9 Cir. 1955); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d; Gamble v. Commissioner, 101 F.2d 565, 567 (6 Cir. 1939), cert. denied 306 U.S. 664, 59 S.Ct. 790, 83 L.Ed. 1061. And it “is ever one of fact and not of formula”. In re Nathan’s Estate, 166 F.2d 422, 425 (9 Cir. 1948); Collins v. Commissioner, 216 F.2d 519, 522 (1 Cir. 1954); Snyder’s Estate v. United States, 285 F.2d 857, 861 (4 Cir. 1961). The “absence of market price is no barrier to valuation”. Guggenheim v. Rasquin, 312 U.S. 254, 258, 61 S.Ct. 507, 509, 85 L.Ed. 813 (1941); Whitlow v. Commissioner, 82 F.2d 569, 574 (8 Cir. 1936).
The Tax Court is the trier of the facts, the judge of the credibility of witnesses and of the weight of the evidence, and the drawer of appropriate inferences. Commissioner v. Scottish American Investment Co., 323 U.S. 119, 123-125, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). An appellate court’s powers of review are limited “and that limitation is particularly narrow when the issue is one of value”. Sisto Financial Corp. v. Commissioner, 149 F.2d 268, 269 (2 Cir. 1945); Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d.
Many relevant factors in the determination of value are listed in Mertens, Law of Federal Income Taxation, Volume 10, § 59.21. Pertinent factors have been noted by this court in Fitts’ Estate v. Commissioner, 237 F.2d 729, 731-732 (8 Cir. 1956), in Arc Realty Co. v. Commissioner, supra, p. 103 of 295 F.2d, and in O’Malley v. Ames, supra, p. 258 of 197 F.2d. One might say in general that these factors are the things that a buyer and a seller would wish to know and consider before reaching a conclusion as to fair value. .This court has said that “there is no single formula universally applicable in determining such value and in the absence of evidence of an open market for stock it is proper to consider all the circumstances connected with the corporation in determining its fair market value”. O’Malley v. Ames, supra, p. 258 of 197 F.2d.
Section 7459(b) of the Internal Revenue Code of 1954, applicable here (see § 7851(a) (6) (C) (iv) of that Code), places upon the Tax Court the duty to make written findings of fact. Section 7482(a) and Rule 52(a), F.R.Civ.P., require that the Tax Court “find the facts specially”. Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Loco Realty Co. v. Commissioner, 306 F.2d 207, 209 (8 Cir. 1962).
In addition to these settled legal principles there are elements in this case which, after a careful review of the stipulated facts, the many exhibits, and the fairly voluminous and technical record, impress us initially and appear to have pertinence generally to the points raised by the taxpayers. These elements are: (1) United common’s underlying asset value being in excess of $11,500 per share, whether the $5 call price increment is utilized or ignored; (2) the taxpayers’ concession of the validity of this underlying asset figure; (3) the substantial difference of $3,178.56 (or $3,003.56) per common share, amounting to approximately 27 %, between this underlying asset figure and the determined value figure of $8,506.40; (4) the impressive list of factors taken into consideration by the Tax Court in making its ultimate finding of value and in weighing the value opinions expressed by the several expert witnesses; and (5) the realization that the four points raised by the taxpayers are essentially interrelated.
With this as background, we consider the four points:
1. Finding the facts specially. The taxpayers argue that “substantial evidence” as to value was submitted by both parties; that because of this any presumption of correctness of the Commissioner’s deficiency determination passed from the case; that there is no way of ascertaining how the Tax Court arrived at its value determination; that although the court listed in general terms several faetors it said it had taken into consideration, it cannot be determined what weight it gave to any of these; that this strikingly contrasts with its valuation findings as to the underlying assets; that the importance of this contrast is evidenced by the discovery of the “$175,-000 error” as to the call premium, a discovery made possible because the court detailed its method of valuing the underlying assets; that the court’s failure deprives the taxpayers of the right to know if there has been a judicial review of the Commissioner’s administrative determination; that an approach based on underlying asset value, when appropriately discounted, produces a result less than the Commissioner’s figure; that one based on price-earnings ratios on consolidated 5-year average earnings or on 1953 earnings produces a result out of line with those prevailing for leading American companies; and that the court did not find the facts specially but pronounced a conclusion and nothing more, A number of cases are cited where valuation details and weighting factors are apparent from the opinions.
This argument is all very well so far as it goes. It is fundamentally, however, an argument for the trier of fact and not one for a reviewing court. It overlooks the fact, although it almost concedes it, that the voluminous record before us does contain material which affords adequate support to the Tax Court’s determination of value. As is mentioned more than once in this opinion, underlying net asset value is not contested here and exceeds $11,500 per common share. There is testimony that the current assets alone yielded a net value of almost $7,000. There is opinion testimony that future earnings would approximate from $400 to $500 per common share. The Commissioner’s expert testified that in his opinion the fair market value of a share of United common on December 31, 1953, was $9,000 and that he had given serious consideration to a value of $9,500 but had recognized that he was concerned with a minority interest. This evidence alone, and without further comment, justifies the Tax Court’s arrival at a value of $8,-506.40 per share,
It is true that the record contains nothing pinned to this exact dollar and cents figure. However, it is well settled that “Valuation * * * is necessarily an approximation * * *. It is not necessary that the value arrived at by the trial court be a figure as to which there is specific testimony, if it is within the range of figures that may properly be deduced from the evidence”. Anderson v. Commissioner, 250 F.2d 242, 249 (5 Cir. 1957), cert. denied 356 U.S. 950; Alvary v. United States, 302 F.2d 790, 795 (2 Cir. 1962) ; Webster Investors, Inc. v. Commissioner, 291 F.2d 192, 194 (2 Cir. 1962); Commissioner v. Thompson, 222 F.2d 893, 895 (3 Cir. 1955); Gloyd v. Commissioner, 63 F.2d 649, 652 (8 Cir. 1933), cert. denied 290 U.S. 633, 54 S.Ct. 52, 78 L.Ed. 551; Mertens, Law of Federal Income Taxation, Volume 10, § 59.03 (1963 cumulative supplement). Such is the situation here.
The valuation of closely held stock is basically a question of judgment rather than of mathematics. We feel that the taxpayers’ argument here comes down to a demand for a formula. Formulas, however, are only tools. With the kind of evidence present here, we need not, and do not, go so far as to require that a detailed computation leading to the determined value be present in the Tax Court’s findings.
2. The finding as to market value. The taxpayers argue that the only valuation finding made by the Tax Court was that the United common was “not less than $8,506.40 per share”; that this is only a general statement; and that it constitutes no finding at all and is meaningless.
As the taxpayers point out, there are cases which have been remanded because the Tax Court’s findings “were not sufficiently definitive”, see Showell v. Commissioner, 238 F.2d 148, 153 (9 Cir. 1956), or because approximations generally discussed did not “reveal the arithmetic employed by the court in reaching its final figure”, see Cohen v. Commissioner, 266 F.2d 5, 12 (9 Cir. 1959). Compare the opinion of four justices in Commissioner v. Duberstein, supra, pp. 292-293 of 363 U.S. pp. 1200-1201 of 80 S.Ct., 4 L.Ed.2d 1218.
In the setting of this case, however, the taxpayers’ argument and their reliance on Showell and Cohen are not convincing. The Tax Court’s determination here, as a practical matter, certainly equates with a finding that the value of the stock was the stated figure and .not ungently hints that the taxpayers might well consider themselves fortunate that it was not higher. An identical finding was upheld in Richardson v. Commissioner, 151 F.2d 102, 104-105 (2 Cir. 1945), cert, denied 326 U.S. 796, 66 S.Ct. 490, 90 L.Ed. 485, although one judge expressed doubt about the actual evaluation standard employed in that case. Somewhat similar language was involved and also upheld in Gross v. Commissioner, 92 F.2d 621, 622 (7 Cir. 1937), although the court there felt that it was confronted with “a rather awkward expression”. See, also, Baker v. Commissioner, 115 F.2d 987, 989 (6 Cir. 1940).
Cohen is a different kind of case for there the Commissioner’s original deficiency determination was “shown to be invalid”. Consequently, the presumption of its correctness had been destroyed and the Commissioner, rather than the taxpayer, had “the burden of proving whether any deficiency exists and if so the amount”, p. 11 of 266 F.2d. See Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). Thus the Tax Court itself had redetermined the deficiency. In the Hamm case here, on the other hand, the figure is well within the range of values which find support in the testimony. The same distinction exists as to Gersten v. Commissioner, 267 F.2d 195 (9 Cir. 1959), urgently pressed upon us by the taxpayers. While there is language in that opinion which is understandably seized upon by the taxpayers here, it seems to us that the core of the holding is that the Tax Court’s result rested on nothing more than sheer speculation. The case was therefore remanded “to permit the taking of further testimony to determine whether any fair market value can be found”, p. 199 of 267 F.2d.
In summary, then, we think the Tax Court's finding here, although phrásed in “not less than” language, possessed sufficient definiteness to meet the requirements of § 7459(b) and Rule 52 (a), to advise and inform the taxpayers appropriately, and to constitute an acceptable finding as to value.
3. The finding as to the value of a minority interest. Here the taxpayers assert that if the Tax Court made any finding of market value of United common it was one which related only to the value of all the common and was not a determination as to the minority interests here involved. There is no merit in this contention. The court’s ultimate finding was as to “The fair market value of the 263% shares of common capital stock of United Properties, Inc., which were transferred by gift * * * ”. This language is repeated in the opinion section of its decision. The material quoted in our footnote above contains specific references to capital structure, outstanding shares, and the number of shares transferred by these gifts. If, in view of the over-all complete ownership of the common by the Hamm family, this minority interest point has any real validity, the foregoing convincingly demonstrates that the minority interest aspect was considered by the court and that its determination was made as to that specific interest.
4. The $735 per share figure. The taxpayers argue here that, because of the staggering amount of United’s total contractual liability under its long term leases, liquidation was impossible as a practical matter; that to a minority shareholder liquidating value and net value of underlying assets were meaningless and of no importance; that the only things of significance to him were earnings and dividend paying capacity; that valuation on the basis of present worth of future earnings is valid; and that $735 a share, the highest possible value testified to by any witness for the taxpayer, was the valuation to be found for United common.
This narrow approach, based on future earnings and dividends, would exclude any consideration of underlying asset value. It was rejected by the Tax Court as not furnishing “a reliable criteria of the value of the shares of stock here involved”.
Here again the taxpayers’ argument is one more appropriately addressed to the trier of fact than to us. It did not sell itself to the Tax Court. Future earnings and dividend prospects are not the only factors having recognizable validity. United was a family company. Its history demonstrates that.it was not managed with a view to dividends. Long range appreciation, inflation hedging, and other investment considerations all seem to have been inherent in its policy. As an appellate court we cannot say that the underlying asset value is without significance. The average small investor on the street might not be attracted to United stock because of the family control and other features but an investor with knowledge, acumen, and substantial capital might be. The absence of dividends, the presence of arrearages, and the existence of sizable rental obligations over the long term are not conclusive factors in view of the nature of this corporation and of its ownership.
We therefore hold that the Tax Court’s conclusion that earnings alone are not a reliable criterion of value was not improper and that its consideration of underlying asset value and of factors other than earnings and dividend prospects was justified. This is a situation where it is clearly for the Tax Court to decide the weight to be given to various factors. In re Nathan’s Estate, supra, p. 427 of 166 F.2d; Bank of California National Ass’n v. Commissioner, 133 F.2d 428, 432 (9 Cir. 1943). The Tax Court was not compelled to accept the evidence of the taxpayers’ experts as to values. “It is within its province to accept such evidence in toto, in part, or not at all. Its weight is with the trial Board, and its worth is for its sound judgment to determine. It is not required to surrender its judgment to the judgment of experts”. Gloyd v. Commissioner, supra, p. 650 of 63 F.2d; Fitts’ Estate v. Commissioner, supra, p. 733 of 237 F.2d. We like and agree with Judge Fee’s comments in Penn v. Commissioner, supra, p. 21 of 219 F.2d:
“There was no need to state the process by which valuation was attained except to make clear that all appropriate factors required by law to be taken into consideration were in fact weighed. As has been seen, [the Tax Court] stated the rule admirably and correctly. If improper weight may have been given to these elements of evaluation but the conclusion was not demonstrably wrong, an appellate court should not interfere. Congress has committed questions such as valuation to the Tax Court. This Court claims no competency in evaluation of stock or in the field of corporate accounting.”
What was said there is applicable here.
Affirmed.
. In its opinion the Tax Court said:
“We have, in making said ultimate finding as to value, carefully considered all the evidence pertaining to the present issue, including the stipulations of fact, the testimony of all witnesses presented by each of the parties, and the numerous exhibits received in evidence which included area maps, corporate records, financial statements and other data pertaining to the problem before us. We also have analyzed all said evidence, and given due weight to each item or portion thereof. Most of the facts established by the evidence have hereinabove been set forth in considerable detail in our Findings of Fact; and, while we believe that no useful purpose would be served by making an extended review of the same here, we state that among the factors or elements of value to which we have given consideration, are the following: The organization and history of United Properties, Inc.; its capital structure, the nature of its business, and the manner in which such business was operated; the number of outstanding shares of each class of the company’s capital stock, and the identity of the shareholders; the number of shares transferred in making each of the gifts here involved; the fact that United's shares were not listed on any exchange, were not dealt in through brokers or in over-the-counter trading, and had not been the subject of any sales; the character and amounts of United’s assets and liabilities; the fair market value of its underlying assets; the amounts and trends of its annual earnings, and the prospects for future earnings; its dividend paying history, and the prospects for future dividend payments; and all other factors which, in our view or that of the witnesses, tend to have an effect on the value of the shares of stock here involved, on the material valuation date.”
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_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).
Doris Jean ALLEN, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
No. 77-1486.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 12, 1979.
Decided Jan. 4, 1980.
Walter K. Crawford, Cookeville, Tenri., for plaintiff-appellant.
Hal D. Hardin, U. S. Atty., William H. Farmer, Margaret Huff, Wm. Gary Blackburn, Nashville, Tenn., for defendant-appellee.
Before EDWARDS, Chief Judge, WEICK, Circuit Judge, and PECK, Senior Circuit Judge.
EDWARDS, Chief Judge.
Appellant Allen seeks reversal of a judgment of the United States District Court for the Middle District of Tennessee affirming denial of Social Security disability benefits previously entered on behalf of the Secretary of Health, Education and Welfare on recommendation of an administrative law judge and the Appeals Council. The case involves an obviously difficult administrative and judicial determination of a Social Security disability claim.
Appellant Allen is a now 45-year-old woman who has a medical record that seems well-nigh impossible to have accumulated in her lifetime. Her' problems have included a laminectomy, an appendectomy, tubal ligation, herniography, hysterectomy, mastectomy, urinary tract infection, spastic colon, adhesions of the lower bowel, and persistent low back and abdominal pain. No witness at the administrative hearing disputed any part of the preceding portion of this paragraph. The disputed question is: Nonetheless is Mrs. Allen now suffering from “a physical or mental impairment” which is “medically determinable” and has lasted or can be expected to last for a continuous period of at least 12 months?
Mrs. Allen appeared without counsel before the Administrative Law Judge. Accordingly, her testimony in response to his patient questioning was somewhat disorganized. Mrs. Allen testified that her first (and it appears only) job was in a shirt factory in Cookeville, Tennessee where she worked for a total of 20 years. Her first factory operation was trimming and matching shirt collars. On returning to work after the birth of her second child, she was put to work sewing on neck buttons. When her third child was born, she did not go back to work until 1964. Then, as to type of work and reasons she left the job in July of 1975, she testified:
A. Well, I was — I started out rolling collars. And, that hurt my back so bad, that I took pick-up.
Q. Now, explain what you mean by, pick-up.
A. Well, as the girls would fold shirts, and put them on a table, I would put tags on them, if they had to be, and travel boards in them.
And, then, I would set them on another table for the boxing girls.
And, then, — well, about a week, or 2, before I went to the hospital, they put me on folding. And, I reckon I was gone to, you know, fold and pick-up, too. There wasn’t enough work on the pick-up.
And, then,—
Q. And, why did you quit your work in July?
A. Well, I got sick in March of last year.
Q. Sick of what? Got sick from what, ma’am?
A. With my stomach.
Q. Well, you say, March of 1975?
A. Uh-huh.
Q. Now, when you say, you got sick with your stomach. Now, tell me a little bit more about that.
A. Well, I had cramps. I almost doubled up with pain, the way I had cramps.
And, I went to Dr. Shipley (phonetic), and he gave me some medicine. And, it didn’t go [sic] any good. And, I went back, and he gave me some more medicine, and put me on a diet of — 5 weeks of milk and crackers.
And, so, then, he put me in the hospital in May.
The ALJ also inquired about her medical history before she left work:
Q. Have you ever had an operation, Mrs. Allen?
A. Yes.
Q. What was that for?
A. Well, I — the first one I ever had was appendicitis.
And, then, I had a hernia.
And, I had 2 on my breasts.
And, I had my tubes tied.
And, I had a spinal fusion.
And, I had a hysterectomy, when I was 28.
And, I guess that’s all.
Q. Was the hysterectomy the last one?
A. No, sir.
Q. When was the most recent—
A. When was the last one?
Q. —uh-huh—operation?
A. Well, the last one was on my breasts. It’s been about 2 years, I guess.
Then, I went to — Of course, I had been to Dr. Francis (phonetic) with my stomach.
And Dr. Alper told me to go to a gynecologist, before—
Q. Where does Dr. Francis have his office?
A. Up here on Cedar Street (phonetic).
Q. And, what did you see him about?
A. I went with my stomach.
Q. And, what did he tell you?
A. Well, he just give me some medicine.
And, Dr. Alper told me to go to a gynecologist, before I came back to Him.
So, I went to Dr. James Sholl (phonetic).
Q. Where does he have his office?
A. He’s here in Cookeville.
And, he told me that he thought I had a bowel obstruction.
Mrs. Allen’s oldest son John also testified under the ALJ’s questioning:
Q. Now, will you tell me what you’ve observed, in the way of her physical problems?
A. Well, on many occasions, I’d come in from school and she’d be lying in on— in bed, and she’ll say, “there’s not much I’ve been able to do, today, you know, in the house.” And, looks pretty bad, still.
She complains that her back hurts. Her stomach cramping. Numerous headaches.
It seems like — I’ve never known my mother — truthfully, I’ve never know my mother to feel really good, like she could, you know, — some thing wasn’t bothering her.
Q. Well, she said she attempted to work there in the shirt factory.
You’re familiar with the fact that she worked there, haven’t you (phonetic)?
A. Yes, sir.
Q. That she quit work there in July of 1975. She’s testified.
Now, did you notice her discomfort, or complaints, got greater, or what?
A. Well, we used — she would ride home with us from school. Me, my brother, and sister.
And, many times, she’d have to lay down in the back seat, because she just wouldn’t feel well enough to sit up and ride.
And, I had always felt that her working there at the shirt factory did intensive her illness, her ailments.
Four qualified physicians, consulted by Mrs. Allen for treatment of her various problems, provided opinions upon her medical problems and/or continued employability-
Dr. Oscar W. Carter of Carter-Spalding Urological Association of Nashville wrote on August 18, 1975:
We have seen this patient at intervals since 1963 with recurrent bouts of urinary tract infection with a urethral stricture and with a stricture in her lower right ureter.
She has required treatment at intervals of about every three months sometimes more often, sometimes not quite that often. In addition to this she has other medical ailments. We feel that this woman is chronically ill and is probably not able to hold a regular job.
On June 22, 1976, Dr. James W. Shaw provided the following “Discharge Summary”- after consultation and examination:
This patient is a 42 year old Gravida III, para III who has had numerous surgeries in the past. Her complaint is a long standing pain in the left lower quadrant which is continuous and also has intermittent episodes of cramping and bloating, especially when she becomes constipated or after she eats. The patient has been admitted to numerous hospitals and has been worked up for this. An upper GI series, BE, IVP’s have all been negative. The rest of her history is in her old charts. The patient is currently being treated by Dr. Oscar Carter for the past 12 years for recurrent, urinary tract problems. On admission the patient’s vital signs were normal. She is a well developed, well nourished, somewhat slender white female who appears to be in chronic distress. The cardiopulmonary system was physiologic. There are masses from previous breast masses. There are multiple abdominal sears present on the patient. Pelvic exam revealed only an irregular mass fixed in the pelvis which is tender to palpation on the left side which appears to be small bowel. The admission diagnosis is chronic abdominal pain, probably small bowel adhesions. The patient’s admission lab work revealed normal urinalysis with WBC 8620 with normal differential and PCV 38. Gynogram was performed on this patient which showed a loop of small bowel in the pelvis. The gynogram reveals a piece of small bowel stuck down in the pelvis. The patient was scheduled for an exploratory laparotomy the day after the gynogram, however, after explanation of the difficulty in removing adhesions and the possibility of the adhesions reforming, and being possible to cause complete bowel obstruction, it was decided by the patient that she attempt to treat- this conservatively for some time to see if she can tolerate it. The patient was discharged on LA formula one tsp t.i.d. after meals, Gaviscon foam tabs 2 after each meal and h.s., Talwin compound 2 tablets every 3 hours pr.n. for pain, Ellavil starting at 25 mg h.s. and then increasing to 75 mg h.s. Septra tablets 1 daily in the morning and the evening, Pyridium one daily in the morning and one in the evening. She was given a follow up visit to the office in 2 weeks.
FINAL DIAGNOSIS: Chronic pelvic pain due to small bowel adhesions with probable intermittent partial small bowel obstruction.
COMPLICATIONS: None
OPERATIONS: None
CONSULTATIONS: None
CONDITION ON DISCHARGE: Unimproved
On August 28, 1975, Dr. Ben Alper provided the following “Discharge Summary” after full examination and clinical tests at the West Side Hospital, Nashville, where she had been under examination and treatment from July 1, 1975 to July 27, 1975:
DISCHARGE SUMMARY: This. 43-year old lady was admitted because of abdominal disorder manifested by a lower abdominal cramping. She has been having the symptoms for 3 weeks when she consulted her physician in Cookeville 4 months ago. A mass in her abdomen was suspected and she was hospitalized, but the mass was never confirmed. Her bowel pattern has varied from having 0-5 stools per day, and no diarrhea or mellena noted. She has had intermittent periods of constipation as well. The details of her history and physical are recorded in the admission notes.
Her clinical impression was: 1) Abdominal pain of undetermined etiology, suspect- spastic colon, 2) Pulmonary emphysema, rule out.
Sigmoidoscopy examination normal, barium enema and IV pyelogram normal, Treadmill EKG suboptimal undiagnostic. She was treated with LA formula. Her symptoms subsided. The SMA was normal. Urine culture sterile, white count 8,200 with normal differential, PCV 38%. DISCHARGE DIAGNOSIS: 1) Spastic colon.
On September 10,1975, Dr. W. C. Francis provided the following history and comment concerning Mrs. Allen whom he first examined on July 19, 1963 and whom he said he had seen “frequently” in the intervening 12 years:
This patient has been followed by me since July 1963. She has experienced repeative (sic) bladder infections and underwent a urethrotomy in 1963 by Dr. Oscar Carter. The patient has had numerous dilatations of the bladder over the years. She was treated by me for a ruptured disc in July 1966 and a chronic mechanical low back strain. She was hospitalized initially for her ruptured disc. The patient has also experienced a cystocoele and rectocoele. She underwent a simple mastectomy and a urethral dilatation by me in October 1970.
This patient has experienced marked weakness, easy fatigability and severe back pain over the past months. She has been unable to work due to her marked weakness, fatigability, chest pain, and back pain. When last seen by me on 9-5-75 she was having symptoms of angina pectoris due to coronary artery insufficiency, severe low back pain, bladder spasms, marked weakness and fatigue.
The patient appeared frail with marked tension and nervousness. Due to her chronic back strain, ruptured disc, chronic G. U. Tract infections, angina pectoris due to coronary artery insufficiency, and her marked tension from her physical condition, I believe this patient will be permanently disabled to hold down a gainful occupation.
As compared to these four doctors who have been intimately concerned with Mrs. Allen’s care, both while she was working and after, the Administrative Law Judge relied in finding no “disability” upon three examinations made at the request of either Social Security or the Disability Determinations Section of the State of Tennessee. One of these doctors was a psychiatrist, Dr. Asher, who opined that he could not “evaluate due to excessive medication.” The second was a clinical psychologist, Dr. Cop-pie, who said “I do not find a psychological condition of sufficient severity to prevent gainful employment.” The last of these physicians was Dr. Rembert who had a series of tests conducted and furnished this “Comment” to the Disability Section:
Comment: I think her most likely problem is chronic anxiety and depression. Certainly she had some back surgery about seven years ago there seems to be no difficulty with that now. She has appropriate care for her urinary tract problem. There are no symptoms which suggest angina or any cardiac disease at this time. The masters was within normal limits. All in all I think her problems are psychological in origin and I do not see any permanent disability.
Thank you for allowing me to see her. Dr. Rembert also checked a form furnished by the Disability Determination Section to indicate “light work.”
From these medical reports and the testimony of Mrs. Allen and one of her sons, the ALJ deduced the following findings:
1. The claimant met the special earnings requirements for disability purposes in July of 1975, the date when she stated she became unable to work; • and she will continue to meet them at least through the date of this decision.
2. The claimant is approximately 41 years of age, has completed three years in high school and has worked in a shirt factory for some 20 years.
3. The evidence shows that the claimant has no significant kidney, bladder, back, or urinary tract problem. There is nothing to suggest angina or cardiac disease.
4. Although not capable of heavy manual labor, the claimant is otherwise able to function in a normal manner, both mentally and physically.
5. Considering the claimant’s physical and mental abilities, her age, her education and work history she would be able to do her regular job inserting tags and travel boards in shirts as well as folding shirts and these jobs are present in the region where the claimant lives.
6. The claimant was not prevented from engaging in substantial gainful activity, on or before the date of this decision, for any continuous period which has lasted or could be expected to last for at least 12 months.
7. The claimant was not under a “disability” as defined in the Social Security Act, as amended, at any time on or before the date of this decision.
The Appeals Council, the Secretary and the District Court affirmed these findings.
The only question before this court is whether there is “substantial evidence” on this whole record to support the no disability finding entered by the ALJ, the Secretary and the District Judge.
We begin our analysis of this case by pointing to four legal propositions which have been repeatedly endorsed by this Circuit in Social Security disability cases:
1. The burden of proof in a claim for Social Security benefits is upon the claimant to show disability which prevents her from performing any substantial gainful employment for the statutory period. Once, however, a prima facia case that claimant cannot perform her usual work is made, the burden shifts to the Secretary to show that there is work in the national economy which she can perform. Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir. 1970).
2. Convincing proof, consisting of lay testimony supported by clinical studies and medical evidence, that pain occasions a claimant’s inability to perform his or her usual work is sufficient to make a prima facia case. Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383 (6th Cir. 1978); Noe v. Weinberger, 512 F.2d 588 (6th Cir. 1975).
3. In determining the question of substantiality of evidence, the reports of physicians who have treated a patient over a period of time or who are consulted for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purpose of defending against a disability claim. Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971); see also Giddings v. Richardson, 480 F.2d 652 (6th Cir. 1973).
4. Substantiality of the evidence must be based upon the record taken as a whole. Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973).
Applying these principles, we hold that the evidence in this record upon which the ALJ based his finding was not “substantial” within the meaning of the statute.
The opinion of the psychiatrist was never expressed and that of the clinical psychologist, of course, went only to whether or not she was psychologically disabled. This record affords no medical evidence of psychological disability.
This leaves Dr. Rembert’s examination, diagnosis and “light work” check mark as the foundation of the ALJ and the Secretary’s denial of benefits. Dr. Rembert opined that he “did not see any permanent disability.” As to this now 45-year-old woman, we would profoundly hope this might prove to be the case. Our question, however, is whether or not she has been or will be disabled from “any substantial gainful employment” for 12 months or more. We are convinced she has been and may be; but we certainly do not rule out the possibility that time and medical treatment will alleviate the problems testified to above so as to allow her return to the work she desires to resume. If so, the Secretary has ample means to terminate benefits. See 42 U.S.C. § 425.
In Beavers v. Secretary, supra, Judge Peck wrote for this court:
The Appeals Council does not appear to be saying it does not believe claimant, but rather that a necessary predicate to considering his testimony, “relevant abnormal findings,” is absent. Yet there are clearly relevant, medical “abnormal findings” in evidence, establishing a bona fide physical problem which could be the source of his difficulties. There is no requirement that the underlying medical basis • for subjective complaints of pain clearly indicate that such pain would be inevitable. If that were the case, there would be no occasion for subjective, personal testimony in a disability hearing, and a person with pain which eludes precise diagnosis would be excluded from the protection offered by the Social Security disability system. Pain is a highly subjective phenomenon, and each person has an individual “threshold of pain,” beyond which he or she is unable to ignore pain and function normally. Determining in an individual case whether suffering has exceeded that threshold, rendering the individual disabled, is necessarily a personal inquiry, and depends heavily on the credibility of the claimant. The plaintiff in this case has provided the Secretary with extensive medical evidence establishing the existence of several physical problems, including a foreign object lodged in his spine, a missing kidney and spleen, degenerative disc disease and arthritis. He has 'documented a long history of fruitless treatment for severe headaches and leg and back pain. The extent to which these physical problems have resulted in total disability requires further inquiry into the subjective personal testimony by the plaintiff describing his pain.
Although it does not say so explicitly, the Appeals Council could have been following a different path in rejecting the plaintiff’s testimony. Its opinion could be interpreted as holding that given the-apparently minor abnormalities demonstrated by the medical evidence, Beavers’ testimony about his pain was simply not credible. If this was in fact its reasoning, we again conclude that the result is not supported by substantial evidence.
577 F.2d at 386.
In Hephner v. Mathews, supra, Judge Weick wrote for this court:
A finding of a capacity to do light work does not constitute evidence that a person can engage in substantial gainful activity, nor is such a finding sufficient to rebut a prima facie case of disability. A claimant’s capacity to perform work must be evaluated in light of his age, his education, his work experience, and his impairments, including his pain. This requires a finding of capacity to work which is expressed, not in terms of a vague catch-all phrase such as “light” work, but in terms of specific types of jobs. Garrett v. Finch, supra at 18; Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967); Massey v. Celebrezze, 345 F.2d 146, 157 (6th Cir. 1965); Rice v. Celebrezze, 315 F.2d 7, 15-17 (6th Cir. 1963). See also Whitson v. Fitch, 437 F.2d 728, 732 (6th Cir. 1971).
574 F.2d at 362 & 363.
In our opinion, the finding by the Secretary that appellant can engage in substantial gainful employment is not supported by this record taken as a whole.
We have considered Dr. Copple’s reference to a possible “decline in motivation.” There may well have been a cumulative effect over the course of years produced by Mrs. Allen’s physical problems, the many surgical procedures employed to deal with them and the medications prescribed and taken to offset pain occasioned by both the problems and the surgery. The human anatomy is, after all, one organism — even though doctors do not always treat it as such.
We do not, however, find this possibility to be a basis for denial of disability. Mrs. Allen can hardly be faulted for accepting the medical advice which was available to her nor can she be faulted for failure of the medical procedures and treatment to return her to a condition where she can work without disabling pain. Mrs. Allen’s financial situation (one wage earner’s income in the $5,000-$6,000 range for five people), would normally supply motivation to return to work. There are no suggestions of malingering in the opinions of the doctors or in the ALJ’s findings. Since Mrs. Allen did work at a factory job for many years in between childbirths and the astonishing series of operations referred to above, she had obviously demonstrated a considerable inclination toward employment.
The judgment below is vacated and the case is returned to the District Court for remand to the Secretary for award of benefits.
. 42 U.S.C. § 423 (1976) reads in pertinant part:
(d) Disability. (1) The term “disability” means—
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or
(B) in the case of an individual who has attained the age of 55 and is blind (within the meaning of “blindness” as defined in section 416(i)(l) of this title), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.
(2) For purposes of paragraph (1)(A)—
(A) an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
(B) A widow, surviving divorced wife, or widower shall not be determined to be under a disability (for purposes of section 402(e) or (f) of this.title) unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.
(3) For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
(4) The Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity. Notwithstanding the provisions of paragraph (2), an individual whose services or earnings meet such criteria shall, except for purposes of section 422(c) of this title, be found not to be disabled.
(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.
. 42 U.S.C. § 405(g) (1976) reads:
(g) Judicial review. Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The Court shall, on motion of the Secretary made before he files his answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and-testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.
. 42 U.S.C. § 42.5 (1976) reads, in pertinent part:
If the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to benefits under : [42 USC § 423], . . may have ceased to be under a disability, the Secretary may suspend the payment of benefits under such . . . [42 USC § 402(d), (e), or (f) or 423] until it is determined (as provided in [42 USC § 421]) whether or not such individual’s disability has ceased or until the Secretary believes that such disability has not ceased, For purposes of this section, the term “disability” has the meaning assigned to such term in [42 USC § 423(d)].
. Tuition costs for the two college students may be offset partially or wholly by an ROTC stipend of $100 per month for nine months for one son, and an assistantship for the other son.
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_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.
Eugene B. GOODMAN, Plaintiff-Appellee, and Sikorsky & Mott, Intervenor-Appellee, v. HEUBLEIN, INC. and Heublein International Division of Heublein, Inc., Defendants-Appellants.
No. 1046, Docket 81-7875.
United States Court of Appeals, Second Circuit.
Argued May 10, 1982.
Decided June 11, 1982.
See also 2d Cir. 645 F.2d 127 and 2d Cir. 646 F.2d 560.
Abner W. Sibal, Hartford, Conn. (Farmer, Wells, McGuinn & Sibal, Edward J. Dempsey, Hartford, Conn., of counsel), for defendants-appellants.
Eugene B. Goodman, Baltimore, Md., plaintiff-appellee, pro se.
Robert W. Heagney, Essex, Conn. (Doyle, Austin & Heagney, Thomas C. Austin, Jr., Donald H. Doyle, Jr., Essex, Conn., of counsel), for intervenor-appellee.
Before FEINBERG, Chief Judge, and NEWMAN and WINTER, Circuit Judges.
FEINBERG, Chief Judge:
Defendants Heublein, Inc. and Heublein International Division of Heublein, Inc. (Heublein) appeal from a November 4, 1981 judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Ch. J. Pursuant to plaintiff Eugene B. Goodman’s motion for interest and costs, the judgment awarded him $24,-787.50 in statutory interest and $10,855.77 in supplemental attorney’s fees.
This is the second time this case has been in this court. Goodman originally brought suit in 1976, alleging that Heublein had violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, by failing to promote him to vice-president because of his age and by transferring him out of the country, thus forcing him to leave the company, in retaliation for pressing his age discrimination claim. After a jury trial before Chief Judge Clarie, the jury awarded Goodman $226,200 in compensatory damages and $226,200 in liquidated damages on November 30, 1979. The entry of final judgment was deferred, however, in part to determine whether Goodman was entitled to attorney’s fees. After four days of testimony, Chief Judge Clarie awarded Goodman $58,468 in attorney’s fees on July 31, 1980. On August 7, 1980, final judgment was entered.
On August 13, 1980, Heublein filed a notice of appeal as to the damages award. Subsequently, Goodman discharged his counsel, Sikorsky & Mott, and proceeded pro se. Sikorsky & Mott filed a notice of appeal on their own behalf on September 5, 1980, claiming the attorney’s fees award was too low. Both Goodman and Sikorsky & Mott thereafter moved for additional relief in the district court, but that court denied the motions because it was without jurisdiction due to the pending appeals. This court affirmed the award of attorney’s fees by order dated December 31, 1980, 646 F.2d 560 (2d Cir. 1980); subsequently, we affirmed the award of damages in an opinion that appears at 645 F.2d 127 (2d Cir. 1981).
After the determination of the appeals, Goodman and Sikorsky & Mott renewed their motions in the district court for additional relief. The motions sought, among other things, prejudgment interest running from the date of the verdict to the date of the final judgment and supplemental attorney’s fees. After holding hearings on the various motions, Chief Judge Clarie rendered the November 4, 1981 decision from which Heublein now appeals.
I.
Heublein challenges the award of prejudgment interest on the ground that Goodman failed to comply with the ten-day time limit on motions to alter or amend judgments imposed by Fed.R.Civ.P. 59(e). We agree that failure to comply with Rule 59(e)’s strictures here bars Goodman’s claim for prejudgment interest. In Lee v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39 (2d Cir. 1979), this court recognized that Rule 59(e) generally applies to motions for prejudgment interest; otherwise, the finality and repose of judgments would be unduly undermined. See also Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69-70 (2d Cir. 1973) (treating undetermined claim for prejudgment interest as separable from claim for principal in order to allow entry of “final” judgment for latter under Rule 54(b) would violate final judgment rule and unnecessarily burden courts with piecemeal appeals). In Lee, we therefore rejected an attempt to avoid the time limit under Rule 59(e) by characterizing the failure to include prejudgment interest as “clerical error” under Fed.R.Civ.P. 60(a).
This court has recognized certain exceptions to this general rule, however. In Lee itself, for example, New York law governed the substantive right to prejudgment interest because the action was one in diversity. Lee v. Joseph E. Seagram & Sons, Inc., 592 F.2d at 41 n.2. Under New York law, an award of prejudgment interest from the date of verdict to that of judgment is mandatory, and the clerk of the court should automatically include such an award in the judgment. N.Y.Civ.Prac. Law § 5002. Under these special circumstances, the court deemed the “clerical error” theory viable as to that portion of the prejudgment interest. In Newburger, Loeb & Co. v. Gross, 611 F.2d 423 (2d Cir. 1979), the court also recognized that in certain instances, an appellate court could award prejudgment interest sua sponte when a district court’s decision as to damages was still open on appeal. Newburger also relied on applicable principles of substantive New York law, N.Y.Civ.Prac. Law § 5001(a) in justifying such an exercise of discretion. 611 F.2d at 433-34.
None of the circumstances justifying deviation from Rule 59(e)’s requirements is present here. The award of prejudgment interest under the ADEA is governed by federal, not state, law. See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 715, 65 S.Ct. 895, 906, 89 L.Ed. 1296 (1945) (right to interest on sums recoverable under Fair Labor Standards Act is question of federal, not local, law); see generally Note, The Age Discrimination in Employment Act of 1967, 90 Harv.L.Rev. 380, 381 (1976) (ADEA incorporates enforcement procedures of Fair Labor Standards Act). Hence, no special provision requiring automatic inclusion of interest from verdict to judgment applies, and the general rule set forth in Lee governs. Also, Newburger simply acknowledges the authority of a court of appeals to allow prejudgment interest as to an award still open on appeal. We declined to follow that course on the previous appeal of this case to allow the district court to consider the claim first, 645 F.2d at 132 n.7. However, our prior preference to permit initial consideration by the district court of the procedural question does not oblige us to accept that court’s answer. Moreover, when the award was still open, we specifically noted the possibility that prejudgment interest had “been sought too late,” id. Thus, in contrast to Newburger, the award of damages here has not only been affirmed on appeal but has also been paid. Under all the circumstances, permitting Goodman to circumvent Rule 59(e) would seriously undermine the finality and repose of judgments.
In light of the strong interest in protecting the finality of judgments, we hold that Chief Judge Clarie erred in concluding that Rule 54(c) could be used to avoid the time limit under Rule 59(e). Rule 54(c) merely authorizes entry of a judgment that affords the relief to which a plaintiff is entitled, even if he has not requested such relief in his pleadings. Yet, it provides no authority for ignoring the time limits for amending judgments that have already been entered. Goodman argues that we should nevertheless uphold Chief Judge Clarie’s decision to waive the ten-day time limit as an exercise of his broad discretion under Fed.R.Civ.P. 60(b)(6). Although Goodman’s motion in the district court for prejudgment interest cited both Rule 60(b)(6) and Rule 54(c), Chief Judge Clarie did not refer to the former rule in his decision. Goodman argues, however, that his pro se status constituted an “extraordinary circumstance” justifying an exercise of discretion under Rule 60(b)(6). We need not express a view on that issue, however, because according to Goodman’s own brief, he did not discharge Sikorsky & Mott until August 19, 1980. He was therefore represented by counsel during the ten-day period following entry of final judgment on August 7. There is thus no merit to the claim of “extraordinary circumstance” justifying waiver of the time limit imposed by Rule 59(e).
To the extent that the prejudgment interest problem here was caused by delay in entering final judgment due to the pending determination of attorney’s fees, this difficulty should not recur after the Supreme Court’s recent decision in White v. New Hampshire Department of Employment Security, - U.S. -, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). In White, the court made clear that an award of attorney’s fees is independent of final judgment; consequently, the need to determine a fee award should in no way affect the requirement that a judgment be entered promptly under Fed.R.Civ.P. 58. A district court should, of course, also follow the suggestion in White to expedite inquiries into the appropriateness of awarding attorney’s fees in order to “avoid piecemeal appeals,” id. at-, 102 S.Ct. at 1168.
II.
Heublein also challenges the award of supplemental attorney’s fees. Because Goodman has assigned his interest in attorney’s fees to Sikorsky & Mott, he addresses in this court only those issues relating to prejudgment interest. Sikorsky & Mott have consequently moved to intervene to defend the fee award. Heublein opposes the motion and argues that Sikorsky & Mott lack standing to pursue a claim for fees in their own right. We grant the motion to intervene because Goodman can not adequately safeguard Sikorsky & Mott’s interest in the fee award, cf. Phillips v. Tobin, 548 F.2d 408, 411-15 (2d Cir. 1976) (pro se plaintiff could not adequately protect interests of corporation in stockholder’s derivative action or those of similarly situated individuals in class action). Moreover, permitting intervention here will minimize piecemeal litigation. See Brennan v. McDonnell Douglas Corp., 519 F.2d 718, 720 (8th Cir. 1975), on remand sub nom. Houghton v. McDonnell Douglas Corp., 413 F.Supp. 1230 (E.D.Mo.1976), rev’d and remanded on other grounds, 553 F.2d 561 (8th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 506, 54 L.Ed.2d 451 (1977), on remand, 474 F.Supp. 193 (E.D.Mo.1979), rev’d in part and aff’d in part, 627 F.2d 858 (8th Cir. 1980).
In deciding whether Sikorsky & Mott have standing, we note that awards of attorney’s fees have played an important role in “encourag[ing] people to seek judicial redress of unlawful discrimination.” Torres v. Sachs, 538 F.2d 10, 13 (2d Cir. 1976). In Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39, 52 (5th Cir. 1976), the Fifth Circuit held that there was:
no statute or public policy denying an antitrust plaintiff the privilege enjoyed by plaintiffs in other cases, that of making an assignment [of the right to fees] to his attorneys in order to secure their services in the prosecution of his case. To deny counsel the fees awarded, and to do so at the instance of an antitrust defendant, would, we think, be inconsistent with the purpose of the statute in allowing, if not encouraging, private enforcement of the antitrust laws.
Here, too, Goodman has assigned his interest in attorney’s fees to Sikorsky & Mott. It seems equally inconsistent with the policy of encouraging private enforcement of the age discrimination laws to deny counsel the opportunity simply to defend a fee award already made. See generally Comment, The Age Discrimination in Employment Act: New Incentive for Private Enforcement, 17 Santa Clara L. Rev. 405, 411 (1977). We therefore conclude that Sikorsky & Mott have standing to answer Heu-blein’s attack on the supplemental counsel fee.
Having determined Sikorsky & Mott’s status, we proceed to the merits of Heublein’s challenges to the award of attorney’s fees. Heublein first argues that the motion for fees was untimely under Rule 59(e). This claim must be rejected. In contrast to prejudgment interest, an award of attorney’s fees in a civil rights case is not a matter encompassed in a decision on the merits of the action. White v. New Hampshire Department of Employment Security, - U.S. at -, 102 S.Ct. at 1167, 71 L.Ed.2d 325. The Supreme Court has consequently concluded that application of Rule 59(e) to motions for attorney’s fees is “[njeither necessary [n]or desirable to promote finality, judicial economy, or fairness,” id. We therefore find that Rule 59(e)’s ten-day time limit presents no bar to this fee award.
Heublein next contends that an award of supplemental attorney’s fees was barred because the district court’s previous award of attorney’s fees had already been affirmed on appeal, and this court’s mandate should not be disturbed. Moreover, Heublein asserts that the previous award included attorney’s fees for the time and effort spent in trying the issue of attorney’s fees and therefore no additional fees should be awarded. As Sikorsky & Mott point out, however, the original fee award covered only the period up to January 7, 1980. A significant amount of time was spent establishing the appropriate fee award after that date. Under these circumstances, Chief Judge Clarie did not abuse his discretion in awarding supplemental fees to compensate counsel fully for time expended on the case after January 7. See Gagne v. Maher, 594 F.2d 336, 343-44 (2d Cir. 1979), aff’d 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (denying attorney’s fees for time spent in obtaining fee award would be inconsistent with purpose of promoting private enforcement of civil rights laws) (determination of attorney’s fees lies within sound discretion of trial court); Defries v. Haarhues, 488 F.Supp. 1037, 1044-45 (C.D.Ill.1980) (award of attorney’s fees to successful plaintiff in ADEA action effectuates its “make whole” policy). We therefore affirm the award of supplemental attorney’s fees.
In addition, Sikorsky & Mott seek an award of fees for time expended on this appeal. Whether to grant such fees on appeal is a matter within this court’s discretion. Hedrick v. Hercules, Inc., 658 F.2d 1088, 1097-98 (5th Cir. 1981); Kelly v. American Standard, Inc., 640 F.2d 974, 986 (9th Cir. 1981); Cleverly v. Western Electric Co., 594 F.2d 638, 643 (8th Cir. 1979) (per curiam), aff’g 450 F.Supp. 507 (W.D.Mo.1978). Sikorsky & Mott have long since ceased to protect Goodman’s rights under the ADEA and are simply protecting their own contractual interests. Indeed, the application, in essence, seeks a fee for their attorneys, and a remand to the district court for determination of the amount. The litigation commenced over six years ago, and we believe that it has gone on long enough. Under all the circumstances, we decline to award attorney’s fees for the work done on this appeal. Goodman similarly seeks an award of costs and an honorarium for the time spent defending his award of prejudgment interest. Because Goodman did not prevail on appeal, we deny these requests as well.
The judgment of the district court is affirmed with respect to the award of supplemental attorney’s fees and reversed with respect to the award of prejudgment interest. Each party shall bear its own costs.
. Heublein claims that Goodman discharged Sikorsky & Mott as counsel on September 4, 1980 while Goodman states that he discharged his former counsel on August 19, 1980. Because this factual dispute is immaterial to our decision, we indicate no view as to the exact date of discharge.
. Because Goodman’s motion for prejudgment interest was untimely, we need not reach Heublein’s claim that an award of prejudgment interest was precluded by an award of liquidated damages under the ADEA. Compare Kelly v. American Standard, Inc., 640 F.2d 974, 982-83 (9th Cir. 1981) (awards of liquidated damages and prejudgment interest apparently regarded as not necessarily mutually exclusive), with Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1114 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981) (liquidated damages award precludes prejudgment interest award).
. In affirming the previous award of attorney’s fees by order dated December 31, 1980, this court specifically refused to decide whether Sikorsky & Mott had standing to appeal the award as inadequate. Instead, in the interests of justice, the panel proceeded directly to the merits and affirmed the award.
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_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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RICH’S OF PLYMOUTH, INC., Respondent.
No. 77-1497.
United States Court of Appeals, First Circuit.
Argued April 4, 1978.
Decided June 6, 1978.
Lee Ann Huntington, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Elliott Moore, Deputy Associate General Counsel, and William R. Stewart, Atty., Washington, D. C., were on brief, for petitioner.
Duane R. Batista, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
The National Labor Relations Board (the Board) seeks enforcement of a cease and desist order issued after its finding that respondent violated section 8(a)(1) of the National Labor Relations Act (the Act) (1) by soliciting employee grievances and promising and granting benefits with intent to discourage support for a union campaign and (2) by creating an impression of surveillance among the employees. Also at issue is whether respondent shall be required to reinstate with back pay a union supporter who walked off her job in a fit of pique on a busy night. We first address those portions of the Board’s order which we enforce.
Promise and Grant of Benefits
Respondent is a chain of nine retail stores. In April, 1976, Local 222 of the Retail Clerks International Association, AFL-CIO embarked on a campaign to organize the employees of respondent’s Plymouth, Massachusetts store. A flyer distributed among the employees announced that an initial organizational meeting would be held on April 26.
The same day of the union’s first meeting, Gerald Costello, personnel and operations manager for the chain, convened the entire workforce, scheduling separate meetings for the day and night shift employees. Addressing the day employees first, Costel- ■ lo discussed the union campaign and the effect of signing authorization cards. He then asked if the employees had any problems. Two subjects were raised: health insurance and the establishment of a grievance committee. Costello agreed to investigate both proposals. He explained that if implemented, a health insurance plan would cover all stores in the Rich’s chain, not just the Plymouth branch, and would be jointly financed by management and the employees.
On May 10 Costello met with a group of 15 or 20 night shift employees. This group’s reaction to the two suggestions made by the day personnel was favorable. Costello told them that a grievance committee procedure would be established and that management would pursue the proposal for health insurance.
A short time later a grievance committee ballot box was installed in the Plymouth store. Two days later it was removed. After the May 10 meeting, no further mention was made of the health insurance proposal. Store supervisors were directed to answer any inquiries about the progress of the employees’ suggestions by stating that the company “had been advised not to go into this at this point.”
Early in May respondent instituted a pay increase of 5 cents per hour for all employees in the chain. On May 14, the union filed a petition with the Board to represent the Plymouth store workforce. An election was conducted on July 22 in which the union lost by a margin of 41 votes to 22, with 7 ballots challenged. Subsequently the union filed unfair labor practice charges and sought to have the election overturned.
We sustain the Board’s conclusion that respondent violated section 8(a)(1) of the Act by soliciting employee grievances and promising benefits during the pendency of this union campaign. One indication that the grievance sessions conducted in this case could be found to have been calculated to infringe upon the employee freedom of choice with respect to unionization, NLRB v. Exchange Parts, 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964), is their timing. Ordinarily, the more imminent a representational election, the greater the presumption that management’s expression of concern for employee welfare has an impermissible motive, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 277 (1st Cir. 1975). Here an election had not yet been requested at the time the employees were convened and additional benefits were discussed, a fact seemingly in respondent’s favor, see id. However, it appears to be no mere coincidence that Costello called for the meetings, inquired of the day employees’ grievances, and promptly responded to their suggestions the very day the union had chosen for its first organizational meeting. We think it reasonable to conclude that the grievance sessions were timed to nip the union effort in the bud.
The manner of convening the workforce adds support to the Board’s finding. Neither grievance session was a regularly scheduled event, see NLRB v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978). The meetings were not called by the employees, but were initiated by management, and concededly in response to the union presence at the store, see NLRB v. Gotham Industries, 406 F.2d 1306, 1311 (1st Cir. 1969). Costello asked for the employees’ proposed improvements promptly after having acknowledged that the union was attempting to organize. When contrasted to respondent’s characteristic method of dealing with employee complaints on an individual, informal basis, convocation of the entire workforce conveyed the impression that with a union campaign in progress, employee suggestions would be taken more seriously.
Some evidence, although it was specifically discredited by the administrative law judge, indicates that the proposal for a health insurance plan may at least have been considered by management prior to the union’s appearance at the Plymouth store, see NLRB v. Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978). Even if that were the case, it would not mitigate the effects of respondent’s conduct. No specific details of such a plan were communicated to the employees prior to April 26, nor did management ever unconditionally commit itself to providing health insurance, id.; NLRB v. Exchange Parts, supra, 375 U.S. at 409, 84 S.Ct. 457. In any event, there is no basis for believing that the second improvement discussed with the employees at the same time, establishment of a grievance committee, had been predetermined, see NLRB v. Arrow Elastic Corp., supra. That idea originated with the day employees at the April 26 meeting. No business justification was even offered for management’s sudden interest in it, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
Respondent seeks support in the fact that whatever promises may have been made at the meetings were never put into effect. In what appears to have been a belated effort to avoid a probable unfair labor practice charge, respondent removed the grievance committee ballot box before an election could be held, made no further mention of the proposal for health insurance, and gave an explanation for its action which was carefully phrased to avoid reference to the union. As we have noted in previous decisions, we are not insensitive to attempts by an employer to mitigate impermissible conduct, see Sta-Hi Division, Sun Chemical Corp. v. NLRB, 560 F.2d 470, 474 (1st Cir. 1977). Once the promises had been made, however, the requisite laboratory conditions for a representational election had been destroyed, and even good faith efforts to blunt their impact could not make it otherwise, id.
Similarly, we agree with the Board that the implementation of a 5 cent per hour pay increase violated section 8(a)(1). Although it is not invariably an unfair labor practice to increase compensation while a union campaign is underway, such conduct makes out a prima facie case of intentional interference with employee organizational rights, see NLRB v. Styletek, supra, 520 F.2d at 280. The burden then shifts to the employer to justify both the fact and the timing of the increase, id.
Respondent argues that it carried that burden by introducing evidence that the decision to increase wages was made in January, 1976, before the union made its presence known, and was implemented pursuant to a consistently applied policy of granting raises in the spring and fall of each year, see D’Youville Manor v. NLRB, 526 F.2d 3, 5 (1st Cir. 1975). However, the administrative law judge and the Board discredited testimony by respondent’s president that by January, 1976, management had resolved to increase wages. We have no basis for disturbing that finding, based as it was on an assessment of credibility, see NLRB v. Garland Corp., 396 F.2d 707, 709 (1st Cir. 1968).
Similarly, the Board was unpersuaded, and we think with good reason, by the argument that the timing of the raise was in line with pre-existing company policy. Between 1972 and 1974 wages were in-creased every six months, in April and October. That pattern was interrupted in 1974 and subsequent increases, mandated by changes in federal minimum wage requirements, were instituted in May, 1974, January, 1975, and January, 1976. The next voluntary pay increase was not until May, 1976. No evidence indicates that the employees had any expectation that they would receive the 5 cent raise, much less that it would be in that month. Since respondent had only once given a raise in May, and that had been two years prior to the period in question, we, like the Board, are unconvinced that respondent had a history of showing its munificence in May. Respondent’s conceded awareness of the union presence at the time it put the increase into effect undermines its argument all the more, see NLRB v. Arrow Elastic Corp., supra, at 704; NLRB v. Gotham Industries, supra, 406 F.2d at 1310. On these facts it appears that even if it might have been decided in advance, the wage increase was “sprung on the employees in a manner calculated to influence the employees’ choice”, NLRB v. Styletek, supra, 520 F.2d at 280.
Impression of Surveillance
We are somewhat more troubled by the Board’s finding that respondent violated section 8(a)(1) by creating an impression of surveillance among its employees. Late in a working day toward the end of April, 1976, a store employee approached Aida Pereira, a union supporter, to ask for her telephone number. According to Pereira, she did not have any paper, and so wrote the number on the back of a blank union authorization card. Steven Rice, then the store manager, called Pereira aside and said, “Aida I know that you are responsible for this.” The administrative law judge concluded that although Rice’s statement was “less than explicit”, in view of the other unfair labor practices respondent had committed and the fact that a union authorization card was involved in the incident, an impression of surveillance had been created.
Part of our difficulty with this conclusion stems from the fact that this episode was short-lived and appeared to be the only one that occurred during the entire union campaign, see Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 468 (1st Cir. 1976); NLRB v. Garland Corp., supra, 396 F.2d at 709. Rice’s comment was at best vague, and contained no reference to the union, or threat of reprisals, see NLRB v. Sandy’s Stores, 398 F.2d 268 (1st Cir. 1968); NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964). Even if Rice had mentioned the union, Pereira was known to management as a union supporter, see Hedstrom Co. v. NLRB, 558 F.2d 1137, 1144 (3d Cir. 1977). The Act does not prevent an employer from acknowledging an employee’s union activity, without more, see NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Nevertheless, “[bjecause this finding is largely grounded on the fact finder’s judgment concerning the credibility of the witness and on unrefuted testimony, we conclude that it was supported by substantial evidence and should not be disturbed”, see Stone & Webster v. NLRB, supra, 536 F.2d at 468.
Refusal to Rehire
It is at the point of reviewing the finding that a section 8(a)(3) violation occurred that we part company with the Board. Jean Schembri, the employee in question, was one of two employees who worked at a jewelry concession in the Plymouth store. Evidence indicated that on several occasions she had expressed interest in the union to respondent’s supervisory personnel.
On July 9,1976 Schembri reported for her evening shift. Customarily a busy night, that Friday promised to be especially so, since an ear piercing clinic was to take place. Schembri approached the concession manager Mary Fontaine and the supervisor Dottie McDonald to inquire about holiday pay she had claimed, after advice from the union, but not received and to renew a complaint about a reduction in the number of hours she had been scheduled to work. When Fontaine informed her she was expected to work at an ear piercing clinic to be held the following day, Schembri protested that she had not been notified of this. Fontaine pointed out that the schedule had been posted two days earlier. Displaying some anger, McDonald suggested that she and Fontaine leave. Schembri asked to speak to McDonald and returned to her station, apparently expecting McDonald to follow. When she discovered that McDonald had left the concession without talking to her, Schembri stormed over to the service desk, announced to assistant store manager Croteau that she was quitting, and told him to find a replacement for her. After giving a substitute employee brought over from the service desk some instruction on preparation for the ear piercing clinic, Schembri left.
Soon after she returned home, Schembri informed Fontaine by telephone that she had quit. Several hours later she again called Fontaine, apologized, and asked for her job back. Fontaine responded that although Schembri had been a good employee, the matter was up to management. She agreed to relay Schembri’s desire to be rehired to McDonald, but noted that the latter was upset with Schembri because of her comments about the union. Several telephone calls with various supervisory personnel and the concession owner followed, but Schembri was not reinstated. Two days later a replacement was hired.
Both parties treat this case precisely the same as one in which there has been an allegation of an unlawful discharge and seem to have assumed that the employer had an obligation to come forward with an explanation for its failure to reinstate Schembri. That premise does not strike us as so obvious. Schembri was not discharged, impermissibly or otherwise, see, e. g. Stone & Webster v. NLRB, supra, 536 F.2d 461. Nor was it ever argued that, by walking off her job, she joined in concerted activity protected by the Act, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Bob’s Casing Crews, Inc. v. NLRB, 429 F.2d 261, after remand, 458 F.2d 1301 (5th Cir. 1972); Colson Corp. v. NLRB, 347 F.2d 128 (8th Cir. 1965). Rather, she unilaterally and precipitously quit her job for a reason unconnected to her union sympathies, see LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4th Cir. 1969); NLRB v. J. W. Mays, Inc., 356 F.2d 693, 695 (2d Cir. 1966).
Under such circumstances Schembri’s rights seem to us to approximate more closely those of a job applicant than those of a discharged employee. Just as union membership or sympathy has not been regarded as an insurance policy for job placement, it cannot assure that an employee who quits and then changes her mind will be reinstated, see NLRB v. Plymouth Cordage Co., 381 F.2d 710, 711 n. 2 (5th Cir. 1967). An employer who refuses to reinstate an employee who voluntarily terminated is arguably in a stronger position to defend its action than one who has discharged the employee. By the same token a correspondingly heavier burden might rest on the Board to prove a section 8(a)(3) violation, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394-95 (6th Cir. 1967).
Nevertheless, we do not rest our decision on any such difference in defenses and burdens. Even assuming that in both circumstances the employee has the same right to reinstatement judged against the same standard, we conclude that the Board erred in finding that respondent’s refusal to rehire Schembri violated section 8(a)(3).
It was conceded here that management was aware of Schembri’s interest in the union movement at the time it was confronted with her request for reinstatement, compare Stone & Webster v. NLRB, supra, 536 F.2d at 464, with NLRB v. Joseph Antell, Inc., 358 F.2d 880, 882 (1st Cir. 1966). There is also evidence that management demonstrated some hostility toward the union effort. However, management alleged, and offered supporting evidence, that it had refused to rehire Schembri not on that basis, but because she had left them in the lurch at an especially bad time. Respondent having offered a legitimate business justification for its conduct, the burden shifted to the Board to establish by substantial evidence “an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one”, NLRB v. Billen Shoe Co., 397 F.2d 801, 803 (1st Cir. 1968). In our repeated efforts to impress this standard upon the Board we have variously redefined it to mean that the decision would not have been made “but for” the employee’s union activity, Coletti’s Furniture, Inc. v. NLRB, 550 F.2d 1292, 1293 (1st Cir. 1977), that union animus was the “dominant” reason, NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 842 (1st Cir. 1963), or the “controlling” motive, NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). By whatever phraseology, we have attempted to make it clear that “the mere existence of anti-union animus is not enough” to make out a section 8(a)(3) violation, NLRB v. Billen Shoe, supra, 397 F.2d at 803.
Here the administrative law judge, upheld by the Board, acknowledged that respondent had asserted a business reason for its conduct, but dismissed it as “improbable” and concluded that “but for” the union activity, Schembri would have been rehired. While the magic words may have been invoked, that is not enough, see Coletti’s Furniture, supra, 550 F.2d at 1293. Our standard must also be reasonably applied to the facts at issue, id. We are unable to convince ourselves that this was done.
This case is unlike Champion Papers Inc. v. NLRB, supra, 393 F.2d at 394, for example, where the asserted reason for the employer’s action, “dissatisfaction” and “attitude”, appeared unsubstantiated or inconsequential. Here respondent’s refusal to rehire Schembri had a sound basis in business judgment. The only employee at the jewelry counter, Schembri had walked out in a fit of temper at the outset of one of respondent’s busiest retail nights, requiring the supervisors to draft an untrained last minute substitute from one of the other departments. An employer’s unwillingness to rehire an employee who demonstrated such irresponsibility and lack of consideration is quite understandable. Moreover, respondent presented evidence to the administrative law judge that it had acted in accordance with a pre-existing policy of refusing to reinstate employees who quit without notice or a valid excuse.
The Board summarily dismissed the proffered reason as “improbable”, see NLRB v. Fibers Int'l Corp., supra, 439 F.2d at 1315, and assorted that respondent’s rein-
statement policy was the exact opposite of what respondent asserted it to be, i. e., that in the past respondent had always rehired employees who terminated voluntarily, and had failed to do so only in this case. The Board’s assertion is belied by the record. Of the two examples the Board relied upon to reach its conclusion, one concerns a rehired employee who had given notice prior to resigning. The other relates to a young boy who was discharged for stealing. He was indeed rehired, but only after his parents managed to persuade respondent that the boy had learned his lesson. In all instances of voluntary termination without notice or explanation cited in the record, the employees in question were not reinstated and it was noted in their personnel files that they were ineligible for rehire. See NLRB v. Murray Ohio Mfg. Co., 326 F.2d 509, 514 (6th Cir. 1963).
In sum, Schembri genuinely quit without notice on her own volition at a pressing time over a matter wholly unrelated to any concerted activity or bargaining. The employer’s professed reason for refusing to rehire her not only is readily understandable as a matter of common sense but was in conformity with a written policy which was, contrary to the Board’s analysis, faithfully followed. While the employer knew that Schembri was a union supporter, there is nothing to indicate that she was other than rank-and-file. All that is left is that management representatives had demonstrated some hostility toward union efforts in conversations with Schembri and had committed some illegal actions in other contexts. On this record we find this to be insufficient evidence of dominant antiunion motive to overcome the legitimate business justification for respondent’s conduct, see Stone & Webster v. NLRB, supra, 526 F.2d at 465; NLRB v. Puerto Rico Telephone Co., 357 F.2d 919, 920 (1st Cir. 1966); NLRB v. Bird Machine Co., 161 F.2d 589, 591 (1st Cir. 1947).
In Coletti’s Furniture, Inc. v. NLRB, supra, 550 F.2d at 1293, we noted that after such repeated and unambiguous interpretation “there can be little reason for us to rescue the Board hereafter if it does not both articulate and apply our rule”. Our rescue mission stops here. So much of the Board’s order as directs that Schembri be reinstated with back pay is set aside. That portion of the order as concerns the violation of section 8(a)(1) is enforced.
So ordered.
. It is unclear from the administrative law judge’s report whether the wage increase was implemented before or after the union filed its petition with the Board. The precise date is unimportant, for it is conceded that at the time the increase went into effect respondent was aware of the union activity in its Plymouth store, see NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969).
. The administrative law judge found that the benefits discussed at the meetings were never actually conferred, There is no claim on appeal that respondent committed a separate unfair labor practice by withholding promised benefits, see NLRB v. Otis Hospital, 545 F.2d 252 (1st Cir. 1976).
. Whether well timed raises create a rebuttable presumption of a violation, as the Board found, or a prima facie case of misconduct, is immaterial to the disposition of this case. In either event the company was called upon to present substantial evidence in opposition to the charge, see NLRB v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (1st Cir. 1975). It failed to do so.
. This can be inferred from the fact that by Pereira’s own testimony, at some point after management’s meetings with the day and night shift employees, but before this incident, personnel manager Costello asked for her reaction to the proposal for implementing health insurance. Pereira responded that she “wanted union representation”.
. Although independently owned, the concession was operated under the supervision of Rich’s employees.
. Schembri recounted to the administrative law judge a series of conversations with the concession manager which, if believed, would have indicated some anti-union animus on the part of the supervisory personnel. Favorably im- , pressed by the manager’s demeanor, and unconvinced by Schembri’s testimony, which he termed “hostile and robot-like”, the administrative law judge disbelieved Schembri’s version of these discussions, except where corroborated by the manager.
. The briefs cite pretext dismissal cases.
. Inclusion of the phrase “but for” constitutes . the only reference in the administrative law judge’s memorandum to any standard. No decision of this court was cited, see NLRB v. Fibers Int’l Corp., 439 F.2d 1311, 1312 (1st Cir. 1971), and there was no elaboration on the “but for” language.
. That Schembri had been considered a competent employee and it may arguably have been in respondent’s interest to bend policy in order to rehire her does not refute the legitimacy of respondent’s refusal to do so. The business justification was within respondent’s realm to make, see Champion Papers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1967). It is neither the Board’s function, nor indeed ours, to second-guess business decisions. "The Act was not intended to guarantee that business decisions be sound, only that they not be the product of antiunion motivation”, Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 467 (1st Cir. 1976) (emphasis in original).
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_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Richard R. BROGLE, by his Guardian ad Litem, Trina A. Van de Wetering, Appellant, v. SOUTH CAROLINA ELECTRIC AND GAS CO., INC., Appellee. Richard M. GORE, by his Guardian ad Litem, Trina A. Van de Wetering, Appellant, v. SOUTH CAROLINA ELECTRIC AND GAS CO., INC., Appellee.
Nos. 74-1946, 74-1947.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 23, 1975.
Decided Feb. 7, 1975.
E. Graydon Shuford and Roy E. Garris, Jr., Columbia, S. C., on brief, for appellants.
Harold W. Jacobs and John C. B. Smith, Jr., Columbia, S. C., on brief, for appellee.
Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
PER CURIAM.
Plaintiffs appeal from an order of the district court granting summary judgment in favor of defendant, South Carolina Electric and Gas Co., in their personal injury actions. Defendant has moved for summary affirmance of the judgment; plaintiffs have moved for summary reversal.
Plaintiffs allegedly were injured while inmates in the South Carolina Department of Corrections when they came into contact with a defective electrical distribution appliance in the prison yard. Their complaints allege, inter alia, that defendant was “negligent, careless, reckless, wilful and wanton . . . [i]n continuing to supply electric power to the electric power distribution station with knowledge that said station was unsafe and highly dangerous . . . .” [.Brogle R. 3; Gore R. 3 (emphasis added)]
Defendant moved for summary judgment on the ground that there was no genuine issue as to any material fact. The supporting affidavits “show uncontrovertedly that the substation at which the plaintiffs were injured and the electrical distribution lines leading to the substations are the properties of and within the exclusive supervision, maintenance and control of the State of South Carolina.” Brogle v. South Carolina Electric & Gas Co., Civ.No. 73-1264, Gore v. South Carolina Electric & Gas Co., Civ.No. 73-1269 (D.S.C., June 12, 1974). Since plaintiffs offered no opposing affidavits, the district court correctly found that there was no genuine issue as to the ownership and control of the apparatus. • Fed.R.Civ.P. 56(e).
However, even absent ownership and control, a power company can be held liable for personal injuries if it has actual knowledge that electrical equipment is dangerous and nevertheless continues to supply electricity to the premises. Carroway v. Carolina Power & Light Co., 226 S.C. 237, 243, 84 S.E.2d 728, 730 — 731 (1954). The affidavits supporting defendant’s motion for summary judgment do not go to the element of knowledge. Knowledge was alleged in plaintiffs’ complaints and denied in the defendant’s answer. It remained a genuine issue of material fact, to be resolved by the district court. Thus, the motion for summary judgment was improperly granted.
Accordingly, defendant’s motion for summary affirmance is denied, and plaintiffs’ motion for summary reversal is granted. The case is remanded to the district court with directions to vacate its order granting summary judgment, and for further proceedings as the district court deems appropriate.
Remanded with directions.
. Defendant also submitted a copy of its General Terms and Conditions, which provide in pertinent part:
6(f): . . The company will not be responsible for the use, care or handling of service delivered to the customer after same passes beyond the point of service connection. [Brogle R. 27; Gore R. 35] 5(i): The customer shall be responsible beyond the point of connection for distribution and control of service delivered by the company. The customer shall save the company harmless from any suit arising, occurring or resulting from the receipt or use of service by the customer. [Brogle R. 26; Gore R. 34]
However, this contract does not relieve defendant of liability to an injured party. It merely gives defendant a cause of action for indemnification against its customer. The proper procedure is for defendant to implead its customer as a third party defendant under Rule 14(a) of the Federal Rules of Civil Procedure.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_numappel
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Peter A. KOKARAS and Diane Kokaras, Plaintiffs, Appellants, v. UNITED STATES of America, Appellee.
No. 92-1616.
United States Court of Appeals, First Circuit.
Heard Oct. 9, 1992.
Decided Nov. 23, 1992.
David C. Engel with whom Engel and Gearreald, Exeter, N.H., were on brief, for appellants.
Elaine Marzetta Lacy, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for appellee.
Before TORRUELLA, Circuit Judge, BROWN, Senior Circuit Judge, BOWNES, Senior Circuit Judge.
Of the Fifth Circuit, sitting by designation.
BOWNES, Senior Circuit Judge.
This is an appeal by plaintiffs-appellants Peter A. Kokaras and Diane Kokaras, spouses, from a dismissal of their complaint, brought under the Federal Torts Claims Act (FTCA) for lack of subject matter jurisdiction because of the failure to file a sum-certain claim within the prescribed statutory period. 791 F.Supp. 35.
I
On May 8, 1987, plaintiffs sustained personal injury to themselves and damage to their automobile when it was struck in the rear by a United States mail truck. On June 2, 1987, plaintiffs filed a Standard Form (SF) 95 with the Postmaster at the United States Post Office in Hampton, New Hampshire. On line 10, entitled “Amount of Claim (in Dollars),” the figure $2,906.61 was inserted in box A, entitled, “Property Damage”; in box B, entitled, “Personal Injury,” the words “to be determined” were written. Box C entitled, “Total,” was left blank. Line 15, entitled, “Signature of Claimant,” was signed only by Peter Kokaras. Plaintiffs were not represented by counsel at the time the SF 95 was executed and filed.
In the spring of 1988, plaintiffs retained Attorney Alfred J. Cirome to represent them. This was well within the two-year statutory period for filing a tort claim with the Postal Service. 28 U.S.C. § 2401(b). No amended SF 95 was filed within the two-year period. Attorney Cirome entered into discussions, both in person and on the telephone, with agents of the Postal Service in an effort to settle plaintiffs’ claim. The settlement negotiations were not fruitful. During the course of the settlement discussions, Attorney Cirome turned over to the Postal Service’s agents medical bills incurred by the plaintiffs along with medical diagnoses and prognoses concerning plaintiffs’ injuries. Based on the record, it appears that no sum-certain demand was made either orally or in writing by Attorney Cirome.
New counsel was obtained by plaintiffs, and on April 26, 1990, suit was brought against the United States under the Federal Torts Claims Act. 28 U.S.C. §§ 2671-2680. The Postal Service denied plaintiffs’ claim on August 2, 1990, on the ground that it was invalid, stating that “it does not inform us to [sic] any dollar amount being claimed.” Three weeks prior to the Postal Service’s denial of plaintiffs’ claim, the United States had filed a motion to dismiss for lack of subject matter jurisdiction. The motion was predicated on the well-established rule that a timely-filed sum-certain claim is a prerequisite for jurisdiction of a tort action against the United States. The district court initially denied the motion to dismiss. The district judge, however, changed his mind after our decision in Corte-Real v. United States, 949 F.2d 484 (1st Cir.1991).
II
We start our legal analysis with Corte-Real. In that case we held that the administrative claim stated a sum certain even though the personal injury box, section 10B of the SF 95, was filled out as follows: “$100,000 plus because still treating and out of work.” Id. at 486. Plaintiff had completed the “Total” box, section 10D, by writing in the figure “$100,000,” without qualification. Id. at 485. We held that “[w]here as here a claim clearly states a specific sum and meets the sum certain requirement in all respects but for concern over the possible detraction of improper surplusage of this insubstantial variety, we see no reason not to strike the surplusage rather than the claim itself.” Id. at 487. The following language reflects our reasoning:
We agree fully with the Government as to the importance and absolute necessity of adherence to the sum certain requirement. We disagree, however, that plaintiffs SF95, as submitted, was so deficient as to fall outside the parameters of that requirement. The SF95 did, in fact, specify a sum certain — $100,-000 — in both boxes, and this figure was unqualified in the box stating the total amount of the claim. To be sure, when the $100,000 appeared in Section 10(B) it was unfortunately accompanied by language suggesting the possibility of a higher claim. The Government was entitled and indeed required, if it was to proceed with the claim, to disregard this. We think it should have done so. To throw out the claim entirely, as other than one for a sum certain, was, on these facts, bureaucratic overkill.
Id. at 486.
With respect to the personal injury claim, however, the case before us is not one of “bureaucratic overkill.” Nowhere on form SF 95 is a sum certain for the personal injuries stated. Moreover, we agree with the district court that any documentation of personal injury submitted was “disorganized and confusing.” Some of the bills submitted are duplicates, others are incomplete, and others reflect the balance due after insurance payments. This presentation did not lend itself to determination of a sum certain or even an approximate total of damages claimed.
Although negotiations ensued between plaintiffs’ attorney and agents of the Postal Service, there is no evidence in the record that a sum certain was ever stated orally or in writing by plaintiffs’ attorney. Moreover, the affidavits of Attorney Ci-rome and Postal Agent Dumont are in conflict. Cirome states that Dumont represented to him on more than one occasion, including on May 5, 1989, at which time Cirome attests he submitted medical re-po&s and bills, that the plaintiffs’ claims had been satisfactorily presented. Postal Service Agent Dumont states, by contrast, that he never advised the plaintiffs or their representative that the claims were satisfactorily presented. More importantly, Agent Dumont attests:
Plaintiffs’ August 7, 1990 submission to the court includes numerous documents which the plaintiffs never submitted to the Postal Service with their administrative claim. These new documents were provided to the Postal Service for the first time on August 29, 1990.
Because the accident happened on May 8, 1987, any bills submitted to the Postal Service in 1990 would be well beyond the two-year limit for filing administrative claims.
This court has consistently held that a timely-presented claim stating a sum certain is necessary for a court to have jurisdiction to entertain a suit against the United States under the FTCA. Corte-Real v. United States, 949 F.2d at 485-86; Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir.1990); Lopez v. United States, 758 F.2d 806, 809 (1st Cir.1985). The rule is the same in other circuits. Cizek v. United States, 953 F.2d 1232, 1234 (10th Cir.1992); Adkins v. United States, 896 F.2d 1324, 1325 (11th Cir.1990); Montoya v. United States, 841 F.2d 102, 105 (5th Cir.1988); GAF Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987); Erxleben v. United States, 668 F.2d 268, 272 (7th Cir.1981); Caton v. United States, 495 F.2d 635, 638 (9th Cir.1974); Bialowas v. United States, 443 F.2d 1047, 1049 (3rd Cir.1971).
The Fifth Circuit has taken a broad view as to what constitutes the statement of a sum certain. In Molinar v. United States, 515 F.2d 246, 249 (5th Cir.1975), it held that the total bills submitted fulfilled the sum-certain requirement. And in Williams v. United States, 693 F.2d 555, 558 (5th Cir.1982), it held that the itemized claim for damages as set forth in the state court complaint would be taken together with the administrative claim form to meet the notice requirements of the FTCA. But even if we followed the lead of the Fifth Circuit in regard to the personal injuries claim, not enough medical information was timely submitted to come anywhere near meeting the sum-certain jurisdictional requirement. The personal injuries claims submitted by plaintiffs can be characterized as the Tenth Circuit did in Cizek v. United States, in which the plaintiff/appellant
did not present a claim containing a statement of a sum certain of the damages sought, which would have allowed the government to make even a reasonable estimate of the value of [his] claim, until after the limitations period had run.
953 F.2d at 1234. We hold that the district court did not have jurisdiction to entertain the plaintiffs’ personal injury claims.
It does not necessarily follow, however, that the extinguishment of the personal injury claims also erases the property damage claim. We believe that the plaintiffs’ property damage claim is severable and that plaintiffs satisfactorily presented a sum certain with respect to their property damage claim. At the time they originally filed their SF 95, plaintiffs set forth the specific sum of $2,906.61 in the box entitled, “Property Damage.” Accompanying the SF 95 was a corroborating repair estimate. Although the repair estimate was somewhat lower than the sum certain stated, it included the name and address of the company which made the estimate. This information was sufficient for purposes of investigation. Unlike the personal injury claim, the government had the information it needed to assess plaintiffs’ property claim from the date plaintiffs filed their SF 95 form. Moreover, we note that prior to the district court’s issuance of its opinion, the government had moved “to reduce the ad damnum claimed in this action from $500,000 to the amount set forth in the administrative claim of $2,906.61.” This was a tacit admission by the government that the property damage claim met the sum-certain jurisdictional requirement.
We believe that the district court went too far in discarding the property damage claim along with the personal injury claim. Our decision in Corte-Real supports saving a claim that is flawed, where the government’s investigatory needs are satisfied. Indeed, dismissing plaintiffs’ certain and unwavering claim for property damages would be indulging the same type of “bureaucratic overkill” that we criticized in Corte-Real. Because the sum-certain requirement was met for the property damage claim, we hold that plaintiffs are entitled to proceed on that claim. The limit on recovery, if there is one, is the amount stated, $2,906.61.
Affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion.
No costs to either party.
. Box C, entitled, "Wrongful death" was also left blank. It appears that plaintiffs submitted property damage documentation and some medical documentation with the original form.
. Attorney David C. Engel represented plaintiffs below and on appeal.
. The Federal Code of Regulations provides in pertinent part:
§ 14.2 Administrative claim; when presented.
(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; ....
28 C.F.R. § 14.2 (1991) (emphasis added).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_crossapp
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
ALLEN-BRADLEY CO. v. SQUARE D. CO. (two cases).
Nos. 9017, 9018.
Circuit Court of Appeals, Seventh Circuit.
March 6, 1948.
Rehearing Denied June 29, 1948.
Edwin B. H. Tower, Jr., of Milwaukee, Wis., and Carlton Hill and Samuel W. Kipnis, both of Chicago, 111. (Victor Beam, of New York City, of counsel) for Allen-Bradley Co.
J. Bernhard Thiess, Sidney Neuman and M. Hudson Rathburn, all of Chicago, 111. (Myron J. Seibold, of Detroit, Mich., of counsel), for Square D Co.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
These appeals are from a judgment, entered August 15, 1945, in a patent infringement suit. In appeal No. 9017, plaintiff appeals from that part of the judgment dismissing its complaint, while in No. 9018, defendant cross-appeals from that part of the judgment in dismissing its counterclaim.
The plaintiff Allen-Bradley Company on June 3, 1938 filed its complaint charging infringement of Letters Patent No. 2,071,-149 (subsequently referred to as patent T49), issued August 17, 1937, upon an application filed July 11, 1935, which contained thirty-one claims, only seven of which are involved in this suit, and upon Wilms and Petersen Reissue Patent No. 20,676, issued March 22, 1938, upon an application filed February 9, 1938, containing six claims, only one of which is now relied upon. The District Court held these claims of both patents invalid, and it is from this holding that Allen-Bradlej appeals in No. 9017.
The defendant Square D Company, on March 30, 1939, filed a counterclaim charging plaintiff with infringement of claims 31 to 36, inclusive, of its Jackson Patent No. 2,143,697, issued January 10, 1939, upon an application filed December 27, 1934. The defendant, also, on January 27, 1941, filed another counterclaim charging infringement of its Van Valkenburg Patent No. 1,890,009, issued December 6, 1932, upon an application filed August 11, 1930. Both of these counterclaims were dismissed on the ground of noninfringement, without any holding as to validity. The defendant appeals in No. 9018 from the judgment dismissing the counterclaim on the Jackson Patent. No appeal has been taken from the judgment dismissing the counterclaim on the Van Valkenburg Patent.
All of the patents in suit are concerned with electric switches employed in the starting of alternating current motors. The trial below was concerned primarily with the question of the validity of plaintiff’s patent T49, and most of the attack here is upon the court’s finding of invalidity. Plaintiff’s reissue patent apparently was considered of minor importance in the court below, as it is here.
We shall, first consider plaintiff's appeal (No. 9017) from the judgment holding invalid Patent No. T49 and Reissue Patent No. 20,676. Patent No. T49 discloses a mechanical structure designed to open a circuit and interrupt an electrical current. Its object, so we are informed, was to provide a switch that would have larger capa.city than a switch in which the arcs were dispersed in an open hood, as in the prior art. The object allegedly was obtained by impounding the arcs between double-break movable and stationary contacts and actuating the movable contacts by a contact carrier arranged outside the closed hood and having a contact holder passing through an opening into the hood.
The switch is shown in the patent drawing as connected in circuit to start and stop an alternating current motor operated on a three-phase alternating supply circuit. The three-phase current rises and falls between zero current during each half-cycle and reverses its direction at the end of every half-cycle in passing through zero.
The switch is provided with three poles, one for each phase, in each of which are double-break contacts, stationary contacts and movable contacts, to make and break the circuit between the motor and the supply circuit. The stationary contacts are spaced apart and arranged on terminals connected to the supply circuit. The movable contacts are arranged on a bridge bar carried by a resilient contact holder mounted on a reciprocable contact carrier operated by a magnet and gravity. The double-break movable and stationary contacts in each pole are enclosed in a closed hood, called an arc enclosing chamber in the patent, and are arranged between the terminals to form a magnetic loop by which is created a magnetic field to impound the arcs in the ends of the hood.
The contact holder is provided with a post attached at its bottom to the contact carrier and having stop lugs at its top. The bridge bar is arranged on the post and urged against the stop lugs by a spring interposed between the bridge bar and the cross-bar carrier. The spring is enclosed in a spring shield having a clearance in the opening to leave it free from the hood. The spring shield has to be free in the opening, or otherwise the post would slide through the shield and bridge bar on raising the contact carrier, and the movable contacts would not be raised to engage the stationary contacts.
This switch, so it is stated, operates on a different principle from the prior art in that the magnetic loop impounds the arcs in the ends of the closed hood and the contact holder has free sliding motion in the opening into the closed hood to actuate the movable contacts. There are seven claims of this patent in suit, which may be roughly divided into two classes. Claims 21, 22, 23, 24 and 26 relate to the combination by which the arcs are impounded in the ends of the closed hood while the contact holder has free sliding motion in the opening to actuate the movable contacts. Claim 21, which appears to be typical of this group of claims, has been arranged by plaintiff with its essential elements shown in italics. It is as follows:
“In an electric switch for industrial control service,
“(1) two spaced stationary contacts (8)
“(2) a bar (34) movable with substantially a translating motion toimrd and from the contacts to electrically bridge the same,
“(3) conductors (51) leading to the contacts from a direction opposite to the approach of the bar,
“(4) an arc-enclosing chamber (37) enclosing said contacts and bar (34), said chamber having but a single opening leading thereto,
“(5) a carrier assembly (20) for moving the bar to and from the contacts and having a part (25) movable through said opening and substantially closing the same, the internal dimensions of the enclosure being such that its walls lie closely adjacent to the contacts and bar, and the clearance between said part which moves through the opening and the walls of the opening being sufficient to facilitate the escape of accumulating gases from within the chamber but close enough to confine the arc within the chamber.”
Claims 2 and 20 relate to a combination by which the resilient contact holders are operable through the opening into the closed hood to actuate the movable contacts. Claim 20 may be regarded as typical and likewise has been arranged by plaintiff with its essential elements shown in italics. It is as follows:
“In an electric switch including a plurality of sets of cooperating stationary and movable contacts (8-37), a plurality of chambers (39) enclosing said sets of contacts and having openings into the interior thereof, a set of stationary contacts (8) secured to one wall of each of said chambers, a carrier (20), a plurality of movable contact sets (37) carried by said carrier, resilient means (28) between said carrier (20) and each of said movable contact sets, and shields (31) surrounding said resilient means (28) and movable in said openings for substantially closing the same.”
The court below, after a lengthy trial in which numerous expert witnesses were heard, filed an opinion and made extensive findings of fact upon which its judgment was predicated. While considerable criticism is directed at the lower court’s opinion and conclusions, it is evident that it gave careful and painstaking effort to the difficult and complicated problems presented. The court held the patent invalid on numerous grounds. We shall first consider its conclusion that the claims in suit “are invalid for lack of invention in view of the prior state of the art.” As to this conclusion, the court in its opinion stated: “The Wilms and Petersen patent does not show an invention. They designed a hood which is completely enclosed except for a single opening in the bottom through which the actuator passes. This is a mere mechanical device permitting the moving of the movable contacts into connection with the fixed contacts. Wilms and Petersen when they designed the hood had no other thought in mind than this.”
The court made numerous findings in support of this conclusion, the most pertinent perhaps being findings 6, 9, 10, 24, 25, 26, 29 and 30.
“6. At the time the application for the Wilms and Petersen patents No. 2,071,149 was filed in the Patent Office (July 11, 1935) plaintiff was the owner of Wilms and Dawe patent No. 1,981,534 which disclosed a double-break vertical acting switch having a hood enclosing the contacts which was of practically the same design as the switch described in the Wilms and Petersen patent except that in the Wilms and Dawe patent the hood was formed in one piece with the bottom of the hood left open and the springs which supported the movable contacts were not enclosed in telescoping spring cups.”
“9. * * * plaintiff admitted that the enclosure disclosed in the application was of the same order as in Thomson patent No. 1,375,983 and Ancotti et al. patent No. 1,310,111 cited by the Examiner, but asserted that complete enclosure, if acquired at the expense of accessibility of the contacts, would result in failure. None of the claims in suit refers to accessibility of the contacts.”
“10. In addition to the Thomson and Ancotti et al. patents cited by the Examiner, the Wurts patent No. 470,161, Henderson patent No. 777,631, Hewlett patent No. 854, 741, Hart patent No. 1,058,178, Leece patent No. 1,817,155, Stanger patent No. 1,465,-878, Frasier patent No. 1,106,294, and Apple patent No. 1,856,407 all show electric switches employing complete enclosure of the contacts.”
“24. The use of a U-shaped loop in conjunction with the double contact arrangement used in both the Wilms and Petersen and the prior Wilms and Dawe switch tends to cause the two arc columns to spread from each other. This action drives the arc gases against the side walls of the hood and sets up a turbulence in the chamber which increases the rate of deionization of the hot gases and tends to interrupt the arc at the point of current zero.”
“25. The cooling effect of the walls of an enclosing hood on the hot gases generated by the arc depends upon the spacing of the walls from the contacts, the area of the walls, and the material from which the hood is made.”
“26. The cooling effect of an insulating hood on the hot gases generated by the arc was taught by the prior Wilms and Loock patent No. 1,804,729, the prior Wilms patent No. 1,901,573, and the prior Wilms and Dawe patent No. 1,981,534.”
“29. The enclosed hood of the Wilms and Petersen patent does not involve invention over the Wilms and Dawe patent. Adding the bottom wall to the Wilms and Dawe switch, to enclose completely the contacts except for a single opening in the bottom wall through which the actuator passes, is a mere mechanical device permitting the moving of the movable contacts into and out of engagement with the fixed contacts.”
“30. A mere opening as such may or may not have a deionizing effect. Wilms and Petersen did not know and consequently did not state the characteristics of an opening which will provide a deionizing effect. They did not invent a device which would effect deionization.”
Any standing which plaintiff may have to claim a patentable invention must rest entirely upon the result obtained from a combination of old elements, for admittedly all the elements of the claims in suit were taken from the prior art. More than that, the novelty of the combination is limited to the cooperating relation between the bottom of the closed hood and the U magnetic loop. At any rate, that is what we glean from plaintiff’s brief, which states: “The Wilms and Petersen patent describes and claims, in addition to the elements in the Wilms and Dawe switch, a bottom to close the hood cooperating with a U magnetic loop through the contacts arranged in a new functional relation to separate and impound the arcs fi;om each other in the ends of the closed hood.” (Emphasis by plaintiff.)
Or, as stated by plaintiff at another point in its brief:
“The Wilms and Petersen switch embodies in a new functional relation, to the combination in the Wilms and Dawe switch, two additional elements:
“(1) a bottom to extend under the bridge bar and close the hood at the bottom;
“(2) a U magnetic loop through the contacts to impound and compact the ionized arc gas in the closed ends of the closed hood.”
With the elements of the combination relied upon thus limited, there is no occasion to discuss in detail the prior art combinations. The court below, as already noted, found that both of the elements relied upon were old and well known and, so far as we are aware, plaintiff makes no attack upon such finding.
Plaintiff, as well as the defendant, prior to the development of the T49 patent, had long been engaged in the manufacture and sale of various types of electric switches; in fact, prior switches developed and used by plaintiff constitute the most pertinent prior art. These patents are No. 1,804,729, issued May 12, 1931, known as the Wilms and Loock switch; No. 1,901,573, issued March 14, 1933, known as the Wilms switch, and No. 1,981,534 issued in 1934, known as the Wilms and Dawe switch.
The Wilms and Loock switch is-illustrated as comprising an insulating base carrying a plurality of arms on which the stationary contacts are mounted. Also mounted on the base is an actuating magnet having a movable armature for operating a cross arm of insulating material, which cross arm supports the movable contacts when the magnet is energized the movable contacts engage the stationary contacts to close the circuit, and when the magnet is de-energized the contacts open by gravity. Disposed over the stationary and movable contacts so as “entirely” to enclose each pair of contacts in a separate compartment or chamber which is open 'only at the bottom, i. e., “only at the point of entrance of the contacts,” is a hood formed of suitable refractory insulating material. The hood of this switch provides insulating barriers around each pair of contacts. These barriers form chambers to confine and restrict the arcs which are formed around the contact gaps when the contacts are open under load. Otherwise, so the patent teaches, the arcs would “flash over” or jump directly across between the conducting parts that form the individual poles of the switch. This patent also teaches that “the smaller the area within the compartment surrounding the contacts, the more efficient the suppression of the arc tending to form upon the separation of the contacts,” and further it is stated that, with the sides of the compartment in close relation to the contacts, the arc spreads upon the walls and is cooled, the hood dissipating the heat by radiation. This switch was manufactured and sold by plaintiff for years as a Size 1 switch having a continuous current rating of 25 amperes and an interrupting rating sufficient to control a 7y2 horsepower motor at 550 volts.
Little need be said of the Wilms patent ’573, the mechanical arrangement of which was quite similar to the Wilms and Loock switch except it was suitable for higher ratings. The patent states that the arcs formed upon disengagement of the movable from the stationary contacts are cooled or quenched by the cover member, which has deeper pockets or compartments than the hood of the Wilms and Loock switch, with a two-part construction employed to render the switch contacts readily accessible for inspection and repair. The Wilms and Dawe switch, which was the immediate predecessor of the patent in suit, comprises a solenoid type magnet having a vertically movable core which carries on its upper end an insulating cross bar. This cross bar has a plurality of upstanding posts on its upper surface for supporting movable contacts or bridging bars. Suitable springs surround the posts so that when the cross bar moves upwardly to engage the bridging bars with the stationary contacts the springs will resiliently press the bridging bars against the stationary contacts. This is a conventional type of contact arrangement known in the art as “double-break” because when the two stationary contacts are connected in an electrical circuit, movement of the bridging bar away from the stationary contacts interposes two air gaps or breaks in each line wire or pole.
The stationary contacts in the Wilms and Dawe switch are carried on an insulating hood which is shaped to provide individual chambers or compartments for each set of contacts, and the Wilms and Dawe Reissue Patent (No. 90,094) states that these chambers afford the same arc quenching effect as the hood of the Wilms and Loock patent.
Just as the switch of the Wilms patent ’573 was designed to handle larger currents than the Wilms and Loock switch, so the switch of the patent in suit was designed to handle larger currents than the Wilms and Dawe switch. Relative to the claims in suit, the changes consisted only of (1) enlarging the parts, (2) adding to the Wilms and Dawe hood a bottom 'wall having the necessary opening therein to permit operation of the contacts, and (3) enclosing the contact springs of the Wilms and Dawe switch in a shield or guard. Changes (1) and (2) are reflected in claims 21 to 24, inclusive, and 26, and change (3) in claims 2 and 20.
Thus the switch of the patent in suit utilizes the same magnet and the same movable contact structure as the Wilms and Dawe switch, except that a pair of telescoping cups encloses each of cfte contact springs in the switch. The stationary contacts are mounted on the top wall of the contact-enclosing chambers, just as the Wilms and Dawe switch, but the contact-enclosing chambers differ from the integral block construction of the Wilms and Dawe switch in that the chambers are provided with bottom walls for increasing the degree of enclosure. A sectional construction is therefore necessarily employed to provide for access to the contacts. In this switch a top block which carries the stationary contacts, a front block and a back block are provided, the three blocks cooperating to form individual chambers for each set of contacts. The bottom wall of each chamber is provided with a hole to receive the telescoping cups of the movable contact structure.
So far as we are able to discern, the Wilms and Dawe switch shows every mechanical and electrical element of the T49 switch, as defined in claims 21 to 24, inclusive, and 26, save that in the latter there has been substituted for the open bottom housing of Wilms and Dawe a box or housing having a bottom wall in which an opening was placed to admit the Wilms and Dawe movable contact actuating mechanism.
As already noted, the court found that the magnetic loop feature as well as the enclosed hood were old. This is not open to dispute. More than that, with the hood open at the bottom, the arcs separated and spent their energy against the side walls. This result was described by Wilms and Dawe as “an arc quenching effect.” Assuming what is claimed that the arcs are more securely impounded and more rapidly extinguished in an enclosed hood, in other words that a better result was obtained, the question arises as to whether the means employed to obtain that improved result — the enclosure of the hood at the bottom — was of such an ingenious nature as to amount to invention. We agree with the lower court that it was not. We should think that it would hardly require the skill of a mechanic to appreciate that an element so elusive as an electric arc could be more readily and firmly impounded in a hood enclosed on all sides than in one open at the bottom.
Wilms, one of the co-patentees, wrote an article entitled “Development of a Solenoid Starting Switch,” published in “Electrical Manufacturing,” issue of October 1935, which while interesting and informative, rather clearly discloses that the patentee at that time failed to recognize the novel features which are now claimed as invention. In fact, the article, while quite laudatory of the new switch, is directed almost entirely at two features, (1) the compactness of the switch, and (2) its sectionalized construction which enabled a mechanic readily to obtain admission for service or repair by the removal of a section. Illustrative of the advantages claimed for the new switch is the following statement: “With the new switch design, where the arc has been confined within the physical dimensions of the switch proper, it was possible to mount those switches much closer together, thus reducing the size of larger control equipment, making it possible to build the control into the machine direct, and providing a much simpler arrangement.”
.The author-patentee in a concluding paragraph stated: “From the test results obtained, and from reports filtering in from industrial users, it is evident that the reduced size of the Bulletin 709 starter has not been purchased at the expense of reliability and performance. On the contrary, as these tests show, performance and reliability have been actually improved. The starter’s reduced size, its increased reliability, its added flexibility, have been the result of improved design.”
Wilms at the trial was cross-examined concerning the article to which we have referred, and a few of the questions and answers pertaining thereto are significant. He testified as follows:
“Q. Now, I would like to ask you to please look through this article carefully and see if you can find any statement which applies to the Wilms and Petersen structure, that is, the Size 2 Allen-Bradley Bulletin 709 starter, which does not apply to the Wilms and Dawe Size 1 solenoid 709 starter. Do you know of any? A. No, I don’t know of any.
“Q. And it is true, is it not, that as far as fundamental features of across-the-line switches are concerned they are all the same in the Wilms and Dawe and Wilms and Petersen switches? A. Yes.
“Q. And that is the reason, is it not, that you make the statement under illustrations on page 64 of the Size 1 and Size 3 starter which statement reads as follows: ‘Minor differences are superficial for same principles have been applied in each’? Is that correct? A. Yes, sir.
“Q. And I am correct, am I not, that the Size 2 and 3 starters are the Wilms and Petersen starters? A. Absolutely, Wilms and Petersen starters, yes.
“Q. And they are just alike except for the size? A. Just alike except in size.
“Q. Except for size? A. For size.”
Plaintiff’s switch was placed on the market in August 1934, although the application for the T49 patent was not filed until July 11, 1935. After having had the opportunity to become familiar with the operation of the switch, patentees pointed out in their application that the purpose was to apply the operating principle of the Wilms and Dawe switch to larger motors with an increased capacity. They stated: “* * * Past experience dictated complete enclosure of the contacts to effect this end, but the need for accessibility of the contacts was paramount, and at one stroke eliminated all past constructions from consideration. While complete and total enclosure of the contacts was needed, if acquired at the expense of accessibility, the switch would be a failure.”
At that time plaintiff admitted that complete enclosure of the contacts was known and was dictated by past experience. Specifically plaintiff admitted that “ * * * Ancotti [No. 1,310,111] and Thomson [No. 1,375,983] anticipate * * * the broad idea of enclosing the contacts for arc suppression.” It thus clearly appears that plaintiff’s theory of patentability, advanced when it sought to obtain patent protection on the T49 switch, was predicated upon accessibility of the contacts. As the court found, however, none of the claims in suit relate or refer to this element which the patentees originally considered as vital.
After considerable maneuvering in the patent office certain claims, including those in suit, were allowed, on what theory is not readily discernible in view of the concession as to the state of the art. The most generous appraisal which we are able to accord to this claimed invention is that the hood was enclosed in such a way as to affect the arcs in a manner that would enable the switch to carry a heavier load. In this there was nothing novel, either in the principle or the result. It was an extended application of prior art teachings, “a change only in form, proportions, or degree, the substitution of equivalents doing substantially the same thing in the same way by substantially the same means,” and is not such invention as would sustain a patent. Smith v. Nichols, 21 Wall. 112, 88 U.S. 112, 119, 22 L.Ed. 566; Schreyer v. Chicago Motocoil Corp., 7 Cir., 118 F.2d 852, 855. The complete enclosure of the hood could hardly be classified as a patentable invention even though it had not been disclosed in the prior art. See Permutit Co. v. Graver Corp., 284 U.S. 52, 60, 52 S.Ct. 53, 76 L.Ed. 163. Likewise, enlarging the proportions and size of the hood and parts of the prior Wilms and Dawe switch to provide for increased capacity could hardly be classified as the exercise of the inventive faculty. Planing-Machine Co. v. Keith, 101 U.S. 479, 25 L.Ed. 939. The improvement of the Wilms and Dawe switch by substituting for its open bottom housing a more complete enclosure or barrier in the form of a box, was not patentable because it was not the result of invention but the mere exercise of the skill of the calling and an advance plainly indicated by the prior art. Electric Cable Co. v. Brooklyn Edison Co., Inc., 292 U.S. 69, 79, 80, 54 S.Ct. 586, 78 L.Ed. 1131; Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 486, 55 S.Ct. 455, 79 L.Ed. 1005.
Claims 2 and 20, as already shown, and as admitted by plaintiff, are directed to “the mechanical arrangement,” by providing for telescoping cups enclosing the contact springs in the switch. Thus the conceptual novelty of these claims resides in the use of a shield or guard for protecting the contact spring from being overheated by the hot gases produced during arcing without interfering with the action of the spring. Such a protective device was likewise old in the art. Bruehl Patent No. 1,764,196. Irrespective of the prior art, however, we would think, when confronted with this situation, that a skilled mechanic might readily foresee the desirability of providing a shield or guard to protect the contact spring from the increased heat and gases occasioned by an enclosed hood.
The court below also concluded that patent T49 was invalid for the reason that the specification thereof is indefinite and contravenes the provision of R.S. § 4888, 35 U.S.C.A. § 33, and that the claims in suit are invalid because they fail particularly to point out and distinctly prove the part, improvement or combination which the patentee claims as his invention or discovery. Inasmuch as we agree with the conclusion that the claims are invalid for lack of invention in view of the prior state of the. art, we find it unnecessary to consider these other grounds which the court utilized as a basis for its judgment invalidating the patent.
Little need be said concerning the reissue patent in suit, No. 20,676. It is based on the same switch as shown in the main patent already considered. The plaintiff sought to withdraw this patent from suit before the court rendered an opinion on the main patent, but the defendant insisted upon an adjudication. The court declared the reissue patent invalid on the Wilms and Dawe patent, which has already been considered in reference to the main patent. The plaintiff has withdrawn from suit on this appeal claims 2, 4 and 5 of this reissue patent, and relies only on claim 1. Here, the claimed invention purports to lie in the use of a metal base plate for supporting the box or housing of the T49 patent and the operating magnet in alignment, and in the consequent elimination of the bulky insulating or slate bases used in some prior types of switches. We think there is little room for controversy but that the use of these metal plates in identical fashion and for identical purposes was not only old in the prior patent art, including the Wilms and Dawe patent, but has been standard practice with the defendant for many years prior to the issuance of any of the patents in suit. We also agree with the conclusion of the lower court that this reissue patent is invalid.
As heretofore noted, defendant filed a counterclaim charging the plaintiff with infringement of defendant’s patent No. 2,143,697. The court below held against the defendant on its charge of infringement and dismissed its counterclaim for want of equity. Defendant’s cross-appeal brings here the lower court’s holding of non-infringement. The defendant in its brief states: “Defendant prevailed in the court below on the main complaint and, absent an appeal by plaintiff, would not have prosecuted this cross-appeal. The counterclaim was, and this cross-appeal is, ‘a shield and not a sword.’ ”
Furthermore, counsel for the defendant stated during oral argument that there was no objection to an affirmance of the judgment involved in this cross-appeal, provided the judgment in appeal No. 9017 was* affirmed. Inasmuch as we have affirmed the judgment in No. 9017, and in view of the statements made by counsel for the defendant in its brief and during oral argument, there appears no reason for a consideration of the cross-appeal on its merits.
The judgment is affirmed as to both appeals.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
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).
In the Matter of Russell Durwood DAVES, Debtor, REPUBLICBANK, LUBBOCK, N.A., Plaintiff-Appellee, v. Russell Durwood DAVES, Defendant-Appellant.
No. 84-1082.
United States Court of Appeals, Fifth Circuit.
Sept. 19, 1985.
R. Byrn Bass, Jr., Lubbock, Tex., for defendant-appellant.
Carr, Evans, Fouts & Hunts, Donald M. Hunt, Lubbock, Tex., for plaintiff-appellee.
Before BROWN, WILLIAMS and GAR-WOOD, Circuit Judges.
GARWOOD, Circuit Judge:
This is an appeal from the bankruptcy court’s decision in an adversary proceeding which imposed an equitable lien against Texas homestead property of a Chapter 13 debtor to secure indebtedness of $54,000 to the appellee Bank.
FACTS AND PROCEEDINGS BELOW
Debtor, appellant Russell Durwood Daves, is an attorney who has practiced law in Lubbock County, Texas since June 1977. The year he began his practice, debt- or and his wife purchased a vacant residential lot in Lake Ransom Canyon for $7,750 and prepared plans and specifications for construction of their home on that lot. However, these plans were not approved by the Lake Ransom Canyon “Architectural Committee”, and First Texas Savings & Loan Association therefore refused to finance the construction costs. Debtor then decided to finance the home from personal savings and cash flow of his law practice.
Prior to commencement of construction work in January 1978, debtor and his wife executed a mechanic’s lien to Danny Joe Cooper of Denver, Colorado, the husband of debtor’s sister. Debtor testified that he executed this mechanic’s lien to preserve the lien on the homestead in case the Lake Ransom Canyon Architectural Committee changed its mind after construction of debtor’s residence commenced and First Texas Savings & Loan Association was re-approached for financing. Contemporaneously with the execution of the mechanic’s lien contract, debtor and his wife obtained the unnotarized signature of Danny Joe Cooper on an undated release of the mechanic’s lien, which they retained. The lien was subsequently recorded. It was never transferred. There was never any subsisting indebtedness from debtor or his wife to Cooper (or any assignee of Cooper) to be secured by this lien, and neither Cooper nor any assignee of his ever did any construction work or furnished any materials respecting the property. By April 1980, debt- or and his wife had invested between $50,-000 and $55,000 in the construction of their home, which was then between sixty and seventy percent complete. This construction was financed from proceeds of the sale of a house they owned in Lubbock, from savings, from cash flow of the debtor’s law practice, and from unsecured loans obtained from Lubbock National Bank, the predecessor of appellee, RepublicBank, Lubbock (“Bank”).
In April 1980, debtor’s loan file at the Bank was turned over to Bank loan officer Linda Diane Jenkins. Debtor approached Ms. Jenkins to obtain a $5,000 unsecured loan for plumbing expenses which debtor was granted on the basis of his satisfactory record of repayment of prior loans. The $5,000 note was repaid by debtor to the Bank in six months, as agreed. During this initial interview, debtor informed Ms. Jenkins of the existing mechanic’s lien on the home at Lake Ransom Canyon executed by debtor so that he could obtain a permanent loan if he could not complete construction through his own cash flow. Between April 1980 and March 1981, debt- or obtained a series of unsecured loans from the Bank totaling $9,000 ($8,000 was applied to residential construction and $1,000 was used to finance a vacation).
In July 1981, debtor had an opportunity to purchase a building at 1111 Main Street in Lubbock which he planned to remodel and use as his law offices. Debtor approached Ms. Jenkins to discuss financing of the office building and told her that he would need $45,000, of which $10,000 would be down payment and $35,000 would cover the estimated expenses of remodeling. The parties agreed on a $55,000 line of credit which would cover the anticipated $45,000 expenditure on the new building and the previous outstanding unsecured loans. Both parties testified that they agreed that debtor would pay interest only on this obligation for one year and then convert it to a five-year installment obligation. In the discussions concerning the $55,000 line of credit, debtor and Ms. Jenkins again mentioned the idea that debtor could obtain a permanent loan on his home at Lake Ransom Canyon or that he could place a second lien on the office building after completing the remodeling if necessary. The $55,000 line of credit was finalized on January 6, 1982, and all of it was eventually drawn. It was not secured. In June 1982, Ms. Jenkins demanded security or payment on the $55,000. Up until that time, the relationship between debtor and Ms. Jenkins appeared to have been harmonious. Though debtor had not paid several three-month notes and six-month unsecured notes as they became due, he had paid interest on each of them and renewed them.
In June 1982, after the Bank demanded payment on its note, the release of the mechanic’s lien was recorded in the office of the County Clerk of Lubbock County, Texas. Debtor did not inform the Bank of the release. The debtor testified at trial that his wife had dated the release and had it notarized and recorded without his knowledge or consent. His wife did not testify. In October 1982, when debtor attempted to obtain a loan from the real estate department at the Bank in order to repay the commercial loan department on the $55,000 note, the real estate department refused to make the loan in the absence of a valid lien against the residential homestead.
Debtor then told Ms. Jenkins that he would give the Bank a lien against the building at 1111 Main Street. However, arrangements for this lien fell through when debtor refused to sign documents Ms. Jenkins had prepared, which included a $55,000 demand note bearing interest at the Bank’s floating prime plus one percent and a deed of trust which recited that the lien would be secondary to a first vendor’s lien and included a homestead disclaimer. Debtor evidently objected to the fact that it was a demand note rather than a five-year installment obligation and to the wording of the homestead disclaimer.
Debtor eventually obtained a $55,000 loan from the First National Bank in Lubbock to pay off his loan at the Bank. This loan was secured with a second lien against the building at 1111 Main Street. However, these funds were not used to repay the Bank. Debtor says that they were used in the remodeling of the building at 1111 Main Street.
When debtor refused payment on the Bank’s note, the Bank initiated a lawsuit against debtor in state court. Debtor then filed a Chapter 13 petition in the bankruptcy court of the Northern District of Texas on April 22, 1983. Debtor’s Chapter 13 plan categorized the $55,000 principal indebtedness to RepublicBank as unsecured. The Bank filed this adversary proceeding, contending that a constructive trust should be imposed by the court against debtor’s residence homestead and the office building to secure at least $54,000 of the $55,000 indebtedness. The bankruptcy court found the two properties were, respectively, the residence and business homestead of debt- or and his wife, rejected the Bank’s argument that a constructive trust should be imposed against either the residence homestead property or the office building, but found that an equitable lien in the amount of $54,000 existed in favor of the Bank against both properties. Debtor appeals from this judgment.
DISCUSSION
Constructive Trust
In the adversary proceeding below, the Bank sought to have a constructive trust imposed by the bankruptcy court against debtor’s residence and business homestead to secure its indebtedness. A constructive trust is an equitable remedy which infers a fiduciary-like relationship respecting a transaction to prevent unjust enrichment arising from abuse of a confidence-inducing association or from fraud. Harris v. Sentry Title Company, Inc., 715 F.2d 941, 946 (5th Cir.1983), modified, 727 F.2d 1368 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 514, 83 L.Ed.2d 404 (1984). The bankruptcy court refused to impose a constructive trust against debt- or’s homestead property because it understood such a device to impress an ownership, as opposed to a security, interest in the property, which the Bank neither sought nor was entitled to. We agree that a constructive trust may not be imposed in this case, but for a different reason. A constructive trust may not be judicially imposed to secure a lien against Texas homestead property when the constitutional and statutory requirements for fixing such a lien have not been met.
The Bank contends that a constructive trust should be imposed in this case because a confidence-inducing relationship had developed between the debtor and the Bank as debtor had obtained and repaid a number of loans over the years, which induced Ms. Jenkins to make additional unsecured loans on the strength of debtor’s promise to secure those loans with liens on properties being improved. It contends that the breach of these promises, upon which the Bank had relied, justifies a constructive trust.
We disagree. The bankruptcy court found that “at least until the release of the mechanic’s lien was recorded [June 9, 1982] I can find nothing in the record which in any manner shows that the bank was being defrauded by Davis.” No more than nine thousand dollars of the outstanding debt to the Bank had been loaned or applied in respect to the residence, and the last advance in that connection was made before July, 1981. Indeed, the last advance of any kind by the Bank to debtor seems to have been made well prior to June 9, 1982. Moreover, there is no evidence of any fraud or breach of confidence by debtor’s wife.
Texas courts have consistently held that a valid lien cannot be created on homestead property in any manner other than in strict compliance with the requirements of the statutes and constitution. Toler v. Fertitta, 67 S.W.2d 229, 230 (Tex.Comm’n App. 1934, holding approved) (settled law of Texas that any attempt to create lien or mortgage on homestead to secure debt, regardless of method or form used, except as provided by constitution, is utter nullity and never becomes effective to any extent); Collier v. Valley Building & Loan Association, 62 S.W.2d 82, 84 (Tex.Comm’n App. 1933, holding approved) (“Constitution and statutes zealously guard the rights of a homestead, and a materialman’s and mechanic’s lien thereon can be acquired only by a strict compliance with the provisions thereof”). To judicially impose a lien on homestead property in the form of a constructive trust based merely upon an oral promise to comply with the statutory requirements would totally undermine the homestead protection provided by the homestead provisions of the Texas statutes and constitution. No Texas court' has countenanced such a result, and we decline to do so.
Equitable Lien
An equitable lien may, in a proper case, arise when circumstances indicate that the parties intended specific property to secure payment of a debt. Citizens’ Co-op Gin v. United States, 427 F.2d 692, 695 (5th Cir.1970); William Clay, Jr. Foundation v. United States, 233 F.Supp. 628, 631 (N.D.Tex.1964) (citing William v. Greer, 122 S.W.2d 247, 248 (Tex.Civ.App.— Dallas 1938, no writ)). The fundamental element necessary to the creation of an equitable lien is the existence of an express or implied contract. Bray v. Curtis, 544 S.W.2d 816, 819 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n.r.e.). The bankruptcy court found that the parties did intend that a lien be created in favor of the Bank against either debtor’s residence or business property to secure the Bank’s loan if the debtor were unable to otherwise pay the debt, and that this intention continued through the complete funding of the $55,-000 line of credit. But, after the demand for payment of the $55,000 was made, the debtor prevented either of these properties from being available for lien purposes by releasing the mechanic’s lien against the residence and impressing a lien against the office building in favor of First National Bank, which encumbered any equity which might otherwise have been available to the Bank. The bankruptcy court stated that “right and justice mandates that an equitable lien be given to the bank.”
However, the bankruptcy court did not consider whether the doctrine of equitable liens would apply when homestead property was involved. This question has not been specifically answered by the Texas courts. However, Texas law which protects homestead property from liens militates strongly against the establishment of any lien which is not created according to statutory and constitutional requirements. According to article 16, section 50 of the Texas constitution, “no mortgage, trust, deed, or other lien on the homestead shall ever be valid except for the purchase money therefor, or improvements made there on, as hereinbefore provided ____” (Emphasis added). Under the same constitutional provision, a lien for work or materials used for construction of improvements on homestead property will exist “only when the work and material are contracted for in writing, with the consent of both spouses, in the case of a family homestead, given in the same manner as is required in making a sale and conveyance of the homestead ____” Texas Revised Civil Statutes Article 5460 tracks the constitutional provisions and states additional requirements for obtaining a lien for improvements against a homestead:
“When material is furnished, labor performed, or improvements as defined in this title are made, or when erections or repairs are made upon homesteads, if the owner thereof is a married man, then to fix and secure the lien upon the same it shall be necessary for the person or persons who furnish the material or perform the labor, before such material is furnished or labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of homestead. And such contract shall be recorded in the office of the county clerk in the county where such homestead is situated, in a well bound book to be kept for that purpose ----”
In Fidelity Savings & Loan Association of Port Arthur v. Baldwin, 416 S.W.2d 482 (Tex.Civ.App. — Beaumont 1967, writ ref'd n.r.e.), the court of civil appeals reversed the judgment of the trial court, which had created an equitable lien against homestead property in favor of the creditor. In that case, the defendant’s mechanic’s lien against homestead property was unenforceable because the contractor had abandoned construction before substantial performance of the contract, which is required before the lien attaches to a homestead. That court granted the defendant a money judgment but held that “no lien, equitable or otherwise,” existed to secure it. For, “[a] lien can exist upon a homestead only when created in accordance with the Constitution of this State.” Id. at 484. Though that court did not go so far as to hold that an equitable lien may never be imposed against homestead property, it did not allow such a lien to stand and stressed the fact that for a lien to be valid against homestead property it must be created in compliance with constitutional requirements.
Likewise, in Tezel & Cotter v. Roark, 301 S.W.2d 179 (Tex.Civ.App. — San Antonio 1957, writ ref’d), the court refused to create an equitable lien in favor of the holder of a mechanic’s lien where there had been no technical compliance with article 5460. Although the creditors in Tezel admitted that they had no lien against homestead property because the contract had not been signed by the wife in accordance with article 5460, they argued that a lien existed against the fund tendered to court by the owner for payment to various creditors on improvements made pursuant to a contract. The court denied such a lien, holding that “[mjechanic’s and materialmen’s liens exist by force of statutes. A statutory lien is not a creature of equity, and unless the claimant falls within or follows the demands of the statute, he is not aided by the plea that he did as much as he could.” Id. at 181. That court cited Colleps v. George W. Smith Lumber Co., 185 S.W. 1043 (Tex.Civ.App. — Beaumont 1916), a similar case, in which the court held that no equitable lien could be impressed on funds tendered to the court to pay for improvements on homestead property because creditors had not complied with the requirements of the predecessor statute to article 5460. That court stated:
“Equity follows the law, and neither by the contract or the agreement or any provision thereof could a lien arise upon the building or grounds, and therefore we are unable, by any process of reasoning, to find how any equitable lien could arise against such funds. Appellants could have protected themselves by a compliance with the statute with reference to fixing liens in such cases, and, as they have not seen fit to do so, they must abide the consequences.” Id. at 1044.
One requirement of the constitutional and statutory homestead provisions deserves special mention. “In the clearest possible language, Tex. Const, art. 16 § 50 (Supp.1974-1975) requires the joinder of the wife in the creation of a lien for improvements upon a homestead,” as does article 5460. Great Eastern Life Insurance Co. v. Jones, 526 S.W.2d 268, 269-70 (Tex.Civ.App. — Beaumont 1975, writ ref’d n.r.e.). In that case, the debtor had executed a note and deed of trust with the creditor for improvements and payment of delinquent taxes on a residential homestead, but his common law wife did not join in either instrument. When debtor defaulted after the improvements had been made and the taxes had been paid, the creditor foreclosed and then instituted a trespass to try title action against the debtor. The court of civil appeals affirmed the trial court’s judgment which declared that all liens and claims held by the creditor were null and void as to the property and that, though the creditor was entitled to a money judgment, he could not recover the land in question from the debtor and his wife. That court rejected the creditor’s argument that the lien should be enforceable to the extent it was given to secure a party paying delinquent taxes as “[sjuch a holding would effectually emasculate this homestead exemption.” Id. at 270. That court held that “[the creditor] is deprived of its lien solely because of the failure to follow the Constitutional and statutory provisions with reference to the fixing of the lien upon the homestead.” Id. See also Tezel & Cotter v. Roark, 301 S.W.2d 179, 181 (Tex.Civ.App. — San Antonio 1957, writ ref’d) (creditors concede that no lien against homestead property exists because contract had not been signed by wife in accordance with article 5460). In this case, the wife did not join in any of the representations to Ms. Jenkins regarding the ability or willingness to place a lien on the family homestead. See Burkhardt v. Lieberman, 138 Tex. 409, 159 S.W.2d 847, 851 (1942) (“acts or omissions alleged to constitute estoppel must be those of both the husband and the wife”; if wife is not estopped to claim homestead, husband cannot be); Lincoln v. Bennett, 138 Tex. 56, 156 S.W.2d 504, 507 (1941). In fact, her action in releasing the mechanic’s lien indicated her desire not to place a lien, at least on the residential homestead.
Texas courts have consistently held that, for a lien to be imposed upon homestead property, the constitutional and statutory requirements must be met. Though they were not met in this case, the Bank seeks an equitable lien imposed on homestead property because the debtor agreed to comply with the requirements to place such a lien in the future, despite the fact that the Bank knew it was making unsecured loans on homestead property. To allow a lien to be imposed on homestead property in the absence of compliance with constitutional and statutory requirements merely by calling it an equitable lien, based on an oral agreement to place a proper lien, would render the constitutional and statutory requirements for imposing liens on homestead property almost meaningless. No Texas decision supports such a result. We hold that the bankruptcy court erred in imposing an equitable lien on debtor’s business and residential homestead properties for the $54,000 advanced to debtor for improvements to those properties based upon debtor’s oral agreement to provide a valid lien.
Implied Vendor’s Lien
Although conceding that no case directly supports imposition of an equitable lien on homestead property, appellee, Bank, argues that a recent Texas Supreme Court case, McGoodwin v. McGoodwin, 671 S.W.2d 880 (Tex.1984), impliedly approves such an equitable lien in this situation. In McGoodwin, the parties agreed upon a court approved, written property settlement as part of a divorce, which awarded the husband a parcel of community property occupied as their homestead for which he agreed to pay consideration for the wife’s one-half interest, the wife agreeing to deed her half interest to him upon payment of all the agreed consideration. When the consideration was not paid, the wife brought suit to force sale of the land, which the husband contended was exempt from sale as his homestead. The Texas Supreme Court stated that, as the property settlement agreement was one which directed payment of consideration for the conveyance of an interest in real estate, its construction would be dictated by the law regarding contracts for the sale of land. As “established Texas law holds that when no express lien is reserved in a deed and the purchase money is not paid, a lien nevertheless arises by implication in favor of the vendor to secure payment of the purchase money,” id. at 882, the divorced wife had a vendor’s lien against the undivided one-half interest in the property which she “sold” to her husband in the divorce settlement. Such an implied vendor’s lien is superior to a claim of homestead by the vendee. Id. However, the Court held that she had no lien against the other half interest. Id. at 883.
The Bank’s main theory for recovery based upon an equitable lien relies upon appellant’s representations that he would place a valid mechanic’s lien on the homestead properties for the cost of improvements to them. It attempts to analogize this mechanic’s lien to a vendor’s lien which arises by implication when a portion of purchase money is not paid for property conveyed. This analogy is not apt. As indicated, the Texas statutes and constitutional provisions respecting homestead specify the types of indebtedness for which there may be a valid lien on the homestead. Liens for any other purpose are invalid. Burkhardt v. Lieberman, 138 Tex. 409, 159 S.W.2d 847, 850 (1942). The authorization for homestead liens to secure sums “for work and material used in constructing improvements” is expressly burdened by the requirement that it is applicable “only” where the specified formalities are followed. Where these formalities are not followed, there can be no lien on homestead for the cost of improvements. By contrast, the authorization for “purchase money” homestead liens is not burdened by any required formality. See Tex.Const. art. 16 § 50; Tex.Rev.Civ.Stat. arts. 3839, 5460. Consequently, purchase money liens on homesteads require no more formality than purchase money liens on other real estate. Texas generally recognizes the implied vendor’s lien, and hence it applies to homesteads. See McGoodwin.
However, $10,000 of the money advanced to debtor by the Bank was used as a down payment for the office building. The Bank claims it should therefore have an implied vendor’s lien on this property, at least to the extent of the $10,000 which was used as a portion of the purchase money. We remand for the limited purpose of allowing the bankruptcy court to consider whether the Bank has such an implied vendor’s lien on the office building. Such a lien, however, cannot be extended to the residence. See Baxter v. Crow, 133 S.W.2d 187, 188 (Tex.Civ.App. — San Antonio 1939, writ dism’d judgmt cor.) (an existing valid lien upon family homestead could not be extended by contract to include the existing business homestead as additional security for the debt against the family homestead only); Hayes v. First Trust Joint Stock Land Bank of Chicago, 111 S.W.2d 1172 (Tex.Civ.App. — Fort Worth 1938, writ dism’d w.o.j.) (an existing lien upon part of a residential homestead could not extend to another part of the homestead subsequently purchased and not charged with the debts secured). Further, the possible lien on the office building would only be to the extent of the purchase money advanced. It would be based upon principles regarding implied vendor’s liens as expressed in McGoodwin, and in statements in Texas opinions which apparently extend such an equitable lien to one who advances purchase money under an oral agreement that the purchaser will execute a mortgage or give a lien as security. See, e.g., Woods v. West, 37 S.W.2d 129, 132 (Tex.Comm’n App.1931, holding approved); Floyd v. Hammond, 268 S.W. 146, 147 (Tex.Comm’n App.1925, holding approved). We authorize the bankruptcy court, in its discretion, to reopen for additional evidence on this one issue.
CONCLUSION
We hold that the Bank has neither a constructive trust nor a lien for funds advanced for improvements on either the residence or the office building, and that it has no lien of any kind on the residence. On remand the bankruptcy court may consider whether the bank has an implied vendor’s lien on the office building to the extent only of funds advanced by it for the purchase thereof.
Accordingly, the judgment below is REVERSED and the case is REMANDED for further proceedings consistent herewith.
. The only way debtor could secure such a lien on his homestead was to execute this mechanic’s lien prior to commencement of construction. See Tex.Stat.Ann. art. 5460 (Vernon 1958).
. Debtor’s dealings with the bank began in 1976. He had successfully repaid several unsecured loans as well as secured loans.
. Article 16, § 50 of the Texas Constitution states in pertinent part:
"The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of both spouses, in the case of a family homestead, given in the same manner as is required in making a sale and conveyance of the homestead---- No mortgage, trust, deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as herein-before provided ____"
. Tex.Rev.Civ.Stat.Ann. art. 5460 states in pertinent part:
"When material is furnished, labor performed, or improvements as defined in this title are made, or when erections or repairs are made upon homesteads, if the owner thereof is a married man, then to fix and secure the lien upon the same it shall be necessary for the person or persons who furnish the material or perform the labor, before such material is furnished or such labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of homestead. And such contract shall be recorded in the office of the county clerk in the county where such homestead is situated, in a well bound book to be kept for that purpose____”
. A different situation might well be presented if a misrepresentation or fraud related to a factual matter which would affect the creditor’s knowledge or understanding of whether a particular property was properly claimed as homestead. See, e.g., Lincoln v. Bennett, 138 Tex. 56, 156 S.W.2d 504 (1941). However, we need not decide whether such a situation would call for imposition of a constructive trust because, in this case, the Bank knew at all times that the property involved was being properly claimed as homestead, that it had not complied with the statutory and constitutional requirements for placing a lien on homestead property, and that it had therefore made unsecured rather than secured loans. Breach of a promise to comply with statutory and constitutional requirements does not and cannot affect the fact that homestead is properly claimed or that the statutory and constitutional requirements for imposing a lien have not been met.
. It is highly doubtful that the mechanic’s lien, which was essentially a sham, could have provided the Bank a valid lien on the residence even if it had not been released.
. For narrow (and here inapplicable) "exceptions” see Lincoln v. Bennett, 156 S.W.2d at 505.
. Moreover, the implied vendor's lien customarily encumbers the property before the homestead interest attaches. While this was not strictly true in McGoodwin, there at least the husband’s homestead interest as a single person, unburdened by his wife’s equal homestead and ownership rights in the same property, did not come into existence before the implied vendor's lien. Here, by contrast, the debtor and his wife had homestead rights in the residence well before any arrangements with the bank in respect thereto.
. Clearly, there was no implied vendor’s lien for the residence purchase, as no bank funds were advanced or used for that.
. These cases state settled Texas law:
“(a) Where purchase money of land is advanced under oral agreement that the purchaser will execute a mortgage or give a lien as security, such agreement is enforceable in equity as a mortgage.
“(b) Until purchase money for property is paid, the purchaser has no such interest therein as would support a homestead claim against the person who advanced the purchase money under the agreement whereby he was to have a lien." Woods v. West, 37 S.W.2d 129, 132 (Tex.Comm.App.1931, holding approved).
We note, however, that in these cases an instrument evidencing the agreement was eventually executed.
We do not hold that the Bank has, or does not have, an implied vendor's lien on the office building to the extent of the purchase money it advanced. The bankruptcy court will address that question in the first instance.
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_r_natpr
|
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 "natural persons". 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.
Harry Robert STEED and Mary R. Steed, his wife, and State Farm Mutual Automobile Insurance Co., Appellants, v. Bert ROUNDY, Appellee.
No. 7857.
United States Court of Appeals Tenth Circuit.
March 1, 1965.
Schall, Sceresse & Addis, Thomas D. Schall, Jr., Albuquerque, N. M., for appellants.
Modrall, Seymour, Sperling, Roehl & Harris, and Frank H. Allen, Jr., Albuquerque, N. M., for appellee.
Before LEWIS and SETH, Circuit Judges, and DAUGHERTY, District Judge.
DAUGHERTY, District Judge.
In this action plaintiffs seek to recover damages from the defendant as the result of an accident involving a car driven by the plaintiff, Mary R. Steed, and owned by the plaintiff, Harry Robert Steed. The plaintiff, State Farm Mutual Automobile Insurance Company, joins the above named plaintiffs under rights of subrogation because of an insurance policy issued by it on the said car under which it made payments by reason of the accident involved herein. The said car collided with a horse owned by the defendant on a highway in Valencia .County, New Mexico.
Two New Mexico statutes appear to have been enacted pertaining to this type of situation. The earlier statute in point of time as to enactment is 64-18-62(b), NMSA 1953 Comp., which reads in part as follows:
“(b) It shall be unlawful for any person to permit livestock to wander or graze upon any fenced highway at any time, or during the hours of darkness to drive livestock along or upon any highway, which is normally used by motor vehicles.”
The other statute, enacted after the foregoing statute is 40-23-4, subd. B, NMSA 1953 Comp., which reads in part as follows:
“B. It shall be unlawful for the owner or custodian of live stock to negligently permit or allow his live stock to run at large upon any part of the public highways of this state which are fenced on both sides.”
The later statute specifically requires proof of negligence on the part of the owner of livestock running at large on the public highways before liability would attach. 34 A.L.R.2d § 5, p. 1291. The earlier statute in using the word “permit” also requires that negligence of the owner must be established before liability would attach. 34 A.L.R.2d, § 4, p. 1289, states:
“Where the particular statute involved provides that the owner shall not ‘permit’, ‘allow’, or ‘suffer’ his animals to run at large, the courts have generally held, or recognized, that statutes of this type are not violated in the absence of at least negligence by the owner of the animals.”
Moreover, it is the rule that when there are two acts upon the same subject, they must stand together, if possible, but if repugnant in any of their provisions, the later act operates as a repeal of the earlier one so far and only so far as its provisions are repugnant to those of the earlier act. See Kemp Lumber Co. v. Howard, 10 Cir., 237 F. 574; Veterans’ Foreign Wars, Ledbetter-McReynolds Post No. 3015 v. Hull, 51 N.M. 478, 188 P.2d 334; Stokes v. New Mexico State Board of Education, 55 N.M. 213, 230 P.2d 243; State v. Montiel, 56 N.M. 181, 241 P.2d 844; State v. Valdez, 59 N.M. 112, 279 P.2d 868; and Alvarez v. Board of Trustees of La Union Townsite, 62 N.M. 319, 309 P.2d 989.
Therefore, in view of the foregoing, it is necessary in New Mexico that negligence be shown on the part of the owner of livestock running at large upon the public highways before liability will attach against him for damages or losses sustained by others by reason thereof.
In the case before us, the evidence establishes that a white mare belonging to a neighbor of the defendant kicked open the pasture gate of the defendant in which he kept his horses, including the one involved in the accident herein; that the defendant exercised due care in the construction, maintenance and inspection of his gates and fences in the vicinity of the accident; that the neighbor owning this white mare lived approximately two miles from the defendant and kept said white mare at that location; that while the white mare had a propensity to open or kick down gates and otherwise get in with or cause horses to be released from their enclosures, the defendant herein had never encountered any such activities on the part of said white mare on his premises until the occasion here involved; the evidence fails to show precisely when the white mare kicked open the gate or exactly when or for how long the horse or horses of the defendant were thereby released onto the highway; the evidence also fails to establish any knowledge on the part of the defendant of his horses being released and running at large on the highway until after the accident involved herein.
In this state of the New Mexico law and the facts of this case, the trial court held that the plaintiffs had failed to produce evidence establishing negligence on the part of the defendant in connection with one of his horses running at large on the highway and being involved in the collision with the plaintiffs’ car. The trial judge held that the accident was due to a combination of circumstances beyond the reasonable foreseeability or control of the defendant and for which he should not be held responsible. From the record before us, it appears that these findings of* the trial judge are proper and are amply supported by the evidence herein.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_numresp
|
10
|
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.
John Michael HERMES, Burt Kaminsky, Arthur Hochstradter, Timothy Hillyer, Frank Murphy, Michael Rompala, Jr., Michael Staufenbiel, Dexter Gorski, Lawrence Parks, Bruce P. Batka, and William Sharpe, Plaintiffs-Appellants, v. William HEIN, individually and as President of the Village Board of the Village of Wheeling, Illinois; Jack Metzger, individually and as Chairman of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jerome Vesecky, individually and as Secretary of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Alan Carlson, individually and as a member of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Ronald Bruhn; Robert Olson; Theodore Bracke, individually and as Chief of Police of the Village of Wheeling, Illinois; Billy Wayne Ralston; Jack Koenig; and the Village of Wheeling, an Illinois corporation and body politic, Defendants-Appellants.
Nos. 82-3099, 83-2119.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 7, 1984.
Decided Aug. 17, 1984.
Michael J. Wall, Rothschild, Barry & Myers, Chicago, Ill., for plaintiffs.
Gary A. Weintraub, Jann, Carroll, Sain & Dolin, David A. Epstein, Chicago, Ill., for defendants.
Before CUDAHY, FLAUM, Circuit Judges, and BARTELS, Senior District Judge.
The Honorable John R. Bartels, Senior District Judge of the Eastern District of New York, is sitting by designation.
FLAUM, Circuit Judge.
This action, brought under 42 U.S.C. §§ 1983 and 1985, presents us with appeals from the district court’s decisions granting the defendants’ motions for summary judgment and awarding the defendants more than $89,000 in attorneys’ fees and costs. For the reasons set forth below, we affirm the summary judgment ruling, but we remand the case for further consideration of the issue of attorneys’ fees.
In the fall of 1978, the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois, (“Commissioners”) conducted competitive examinations for the purpose of promoting one police officer to the rank of lieutenant and one officer to the rank of sergeant. The examinations consisted of four components, each of which contributed a fixed percentage to the final score: written examination — 55%; oral examination — 25%; merit and efficiency rating — 10%; seniority (1% per year with a maximum of ten years) — 10%. Plaintiff Hermes, a police officer in the Wheeling Police Department, participated in the competition for promotion to lieutenant, while the other ten plaintiffs, also Wheeling police officers, took the examination for promotion to sergeant. Although the Commissioners awarded Hermes the maximum possible score on each discretionary component of the lieutenant examination, Hermes placed second on the final eligibility list for the lieutenant position. Four of the plaintiffs competing for the sergeant position failed the written examination and were disqualified. The remaining six plaintiffs placed sixth, seventh, eighth, eleventh, fourteenth, and sixteenth on the final sergeant list. After the posting of the final lists, defendants Ralston and Koenig, who placed first on the lieutenant and sergeant lists, respectively, received the promotions.
The plaintiffs filed suit in federal district court on February 27, 1979. They alleged that the Commissioners, the President of the Village of Wheeling, and the Village of Wheeling falsified the results of the examinations and manipulated the numerical rank of each candidate on the eligibility lists for the purpose of promoting Ralston and Koenig, who allegedly have local political affiliations. The plaintiffs claimed that this conduct violated their first amendment right to remain politically neutral and their due process right to promotion and that they were entitled to relief under 42 U.S.C. §§ 1983 and 1985. The defendants moved to dismiss the complaint. On November 16, 1979, the district court ruled that although the complaint adequately alleged a violation of the plaintiffs’ first amendment rights, it did not allege a sufficient basis on which to find that the plaintiffs had a property interest in promotion for purposes of due process. The court thus dismissed the plaintiffs’ due process claim with leave to amend. Hermes v. Hein, 479 F.Supp. 820, 824-25 (N.D.Ill.1979). The plaintiffs then amended their complaint, and the defendants again moved for dismissal. On December 24, 1980, the district court denied the defendants’ motion to dismiss the amended complaint, ruling that the plaintiffs’ allegations were sufficient to establish a due process property interest in promotion. Hermes v. Hein, 511 F.Supp. 123 (N.D.Ill.1980).
During 1979 and 1980, the plaintiffs conducted sixteen deposition sessions and served interrogatories on the defendants, while the defendants posed interrogatories to the plaintiffs. The defendants moved for summary judgment on March 25, 1981, and the district court granted the motion on November 30, 1982. The defendants then asked for attorneys’ fees and costs, and on May 13, 1983, the district court awarded $87,326.50 in fees and $2,344.65 in costs. The plaintiffs now appeal both district court rulings.
Summary Judgment
In its memorandum opinion granting the defendants’ motion for summary judgment, the district court found that the plaintiffs failed to provide any factual support or raise any genuinely contested issues of material fact regarding either their first amendment claim of political discrimination or their due process claim. With regard to the first amendment claim, the court applied the principles of Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and ruled that the plaintiffs failed to show both that their political associations were a motivating factor in the promotion process and that but for their protected conduct, they would have been promoted. In discussing the due process claim, the court stated that, to establish a due process property interest in promotion under the guidelines expressed in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the plaintiffs had to show that the defendants had a policy, communicated to the plaintiffs, to promote in exact rank order from the eligibility roster. The court found, however, that although the plaintiffs properly alleged such a policy, they failed to adduce any meaningful facts to support their allegations. Furthermore, with regard to both the first amendment and the due process claims, the court held that the “[pjlaintiffs simply have no actual support for their charges of impropriety or irregularity concerning the administration of the oral and written promotional exams.” Memorandum Opinion dated November 30, 1982, at 12. In addition, the court found that no material facts supported the plaintiffs’ conspiracy charges under 42 U.S.C. § 1985(3).
In appealing the district court’s decision, the plaintiffs contend first that the district court did not use the proper legal standard to decide the defendants’ motions for summary judgment. The plaintiffs also argue that genuine issues of material fact exist on both the first amendment and the due process claims. Finally, the plaintiffs maintain that the district court abused its discretion by denying their request for additional discovery.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In responding to a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R.Civ.P. 56(e). See also Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, —U.S. —, 104 S.Ct. 392, 393, 78 L.Ed.2d 336 (1983). Although any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party, only reasonable inferences will be considered. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983).
Applying this legal standard to the facts in the present case, the district court’s grant of summary judgment on the plaintiffs’ first amendment claim will be sustained if the only reasonable inferences from the record are that Ralston and Koenig would have been promoted regardless of their political affiliations. See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (no constitutional violation where public employer can show that employee would have been transferred even if employee had not exercised first amendment rights). Cf. Egger v. Phillips, 710 F.2d 292, 322-23 (7th Cir.1983) (en banc) (although record revealed that employer would not have transferred employee but for employee’s first amendment activity, summary judgment for defendant was proper where transfer was tailored to vindicate specific state interest at stake), cert. denied, —U.S. —, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). If evidence of the defendants’ motivation in promoting Ralston and Koenig is subject to conflicting interpretations, summary judgment is not appropriate, regardless of the defendants’ denials of political motivation. Conrad v. Delta Airlines, 494 F.2d 914, 918 (7th Cir. 1974).
In support of their motions for summary judgment, the defendants presented deposition testimony and interrogatory answers to demonstrate that neither Ralston nor Koenig have any local political affiliations and that, in any event, both officers would have been promoted regardless of their political associations. In response to the defendants’ motions, the plaintiffs failed to set forth specific facts showing that there was an issue as to Ralston’s political affiliations, and our review of the record does not reveal any fact from which we can infer that Ralston has such affiliations. In the case of Koenig, there is deposition testimony that Koenig’s wife worked on defendant Hein’s political campaign at the request of defendant Metzger. However, the plaintiffs have failed to respond to the defendants’ motions by producing evidence from which to infer that Koenig would not have been promoted to sergeant but for his associations with Metzger and Hein. Though the plaintiffs maintain that the defendants falsified test scores in the competition for the sergeant position and that the defendants improperly manipulated the candidates’ numerical ranking on the sergeant promotion list, the record contains no factual support for these allegations. We thus are unable to draw a reasonable inference from the record that either Ralston or Koenig would not have been promoted but for his political affiliations, and we affirm the district court’s conclusion that there is no genuine issue of material fact as to the plaintiffs’ first amendment claim.
With regard to the plaintiffs’ due process claim, it is clear that the district court’s grant of summary judgment cannot be upheld if there is a reasonable inference that the plaintiffs have a property interest in promotion and that promotion was denied to them without due process. See Hadley v. County of DuPage, 715 F.2d 1238, 1240-41 (7th Cir.1983). A property interest in promotion need not arise out of a contract or statute, but may be based on a defacto promotional program. In Perry v. Sindermann, 408 U.S. at 602, 92 S.Ct. at 2700, the Supreme Court held that, although there was no formal tenure procedure in the Texas state college system, the plaintiff professor should have been given the opportunity to establish a legitimate claim of entitlement to tenure by showing that an unwritten “common law” of tenure was created in practice. Such a common law of employment is established through rules or mutually explicit understandings, id. at 601, 92 S.Ct. at 2699, and not solely through the past practices of the employer. See Board of Regents v. Roth, 408 U.S. at 578 n. 16, 92 S.Ct. at 2710 n. 16 (although most professors hired on year-to-year basis by university were in fact rehired, such past practice did not constitute common law of re-employment). See also Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1099 (9th Cir.1981) (mere fact that bank never had terminated someone like plaintiff was insufficient to create plaintiffs entitlement in employment), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982).
The district court in the present case relied on Perry and Roth when it denied the defendants’ second motion to dismiss and ruled that the plaintiffs had alleged a due process property interest in promotion by claiming that the defendants’ unwavering custom, communicated to the plaintiffs, was to promote only the top candidate on each eligibility roster. In their subsequent motions for summary judgment, the defendants argued that such a custom could not establish a legitimate property interest because it would be inconsistent with Ill.Rev.Stat. ch. 24, § 10-2.1-15 (1979), which states that fire and police commissioners may promote any of the top three candidates. We need not decide whether Illinois law would allow the defendants to adopt a policy of promoting only the highest ranked candidate because, even if it would, there is no evidence from which we can reasonably infer that this alleged policy was ever promulgated throughout the police department or stated to any of the plaintiffs. In the absence of such communication, we cannot conclude that the record reflects a rule or mutually explicit understanding sufficient to establish, a due process property interest. We thus affirm the district court’s grant of summary judgment on the plaintiffs’ due process claim.
In addition, we find no merit to the plaintiffs’ contention that the district court erred in denying their request for additional discovery. On February 25, 1982, approximately seven months after both parties fully briefed the defendants’ motions for summary judgment, the plaintiffs requested a delay in the district court’s ruling so as to afford the plaintiffs the opportunity to redepose former Wheeling police officer Thomas Conte. The plaintiffs explained that Conte informed them that he had additional information that would be helpful to them in this suit. The district court allowed the plaintiffs to submit an affidavit from Conte. Upon reviewing the information revealed in the affidavit, the court denied the plaintiffs’ request.
Whether to allow further discovery during the pendency of a motion for summary judgment is within the discretion of the district court. Cf. Fed.R.Civ.P. 56(f) (where party opposing summary judgment motion is unable to present by affidavit facts essential to justify opposition, court may order continuance to permit discovery or may make such other order as is just). After considering Conte’s affidavit and the ample opportunity that was afforded to the plaintiffs to conduct discovery prior to the defendants’ motion for summary judgment, we cannot conclude that the district court abused its discretion in denying the plaintiffs’ request for further discovery.
Attorneys’ Fees
In a memorandum opinion issued approximately six months after it granted summary judgment in this case, the district court awarded attorneys’ fees to the defendants pursuant to 42 U.S.C. § 1988 (1982). The court stated that the plaintiffs’ response to the defendants’ motions for summary judgment was not only inadequate to withstand the summary judgment motion, “but it also demonstrated beyond peradventure that the plaintiffs’ action lacked any factual substance from the outset.” Memorandum Opinion dated May 13, 1983, at 4. Furthermore, as an additional basis for its award of fees and costs, the court referred to several of the plaintiffs’ motions for temporary restraining orders as “actions ... which were calculated to confound the defendants’ legitimate operations at almost every turn.” Id. at 5. The court agreed with the defendants that the plaintiffs’ action disrupted the Wheeling Police Department for nearly four years, and it observed that this “internecine warfare” may have adversely affected the Wheeling community. Id. The court then concluded that “where all of this turmoil was generated by allegations which were, at bottom, completely hollow, it is particularly appropriate to award attorneys fees against the plaintiffs who instituted this action and pressed it for four years.” Id.
The plaintiffs, in appealing this decision, contend that their action was not frivolous, unreasonable, or so lacking in factual support that an award of attorneys’ fees was appropriate. The plaintiffs assert that circumstantial evidence bolsters their charges. Furthermore, the plaintiffs argue that even if their suit was frivolous, the amount of fees awarded by the district court is not supported by the record.
In cases brought under 42 U.S.C. §§ 1983 and 1985, the district court, “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 (1982). The Supreme Court has determined that a district court may assess attorneys’ fees against plaintiffs in section 1983 actions only if it finds that their claims were “ ‘frivolous, unreasonable, or groundless, or that the plaintiff[s] continued to litigate after [their claims] clearly became so.’ ” Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978)). See also Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1937 n. 2, 76 L.Ed.2d 40 (1983) (for defendant to be entitled to attorneys’ fees under 42 U.S.C. § 1988, court must find that plaintiff’s action was “vexatious, frivolous, or brought to harass or embarrass the defendant”). The Court has stated that although plaintiffs’ subjective bad faith is not a prerequisite to an award of attorneys’ fees to defendants, district courts should not conclude that an action is unreasonable simply because it is ultimately unsuccessful. Christiansburg Garment Co. v. EEOC, 434 U.S. at 421-22, 98 S.Ct. at 700-01. The Court has recognized that, at the time suit is brought, a plaintiff seldom can be sure of ultimate success:
No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
Id. at 422, 98 S.Ct. at 700.
This court recently applied these principles in Ekanem. v. Health & Hospital Corp., 724 F.2d 563 (7th Cir.1983), petition for cert. filed, 52 U.S.L.W. 3846 (May 4, 1984) (No. 83-1805), where the plaintiffs filed individual and class claims of racial discrimination in the defendants’ employment practices, individual claims of retaliation for protesting such discrimination, and individual claims of violations of first amendment rights. After twenty-six days of trial, when the plaintiffs concluded their case in chief, the trial court granted the defendants’ motion for dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. The trial court later awarded attorneys’ fees and costs to the defendants. On appeal, this court upheld the trial court’s grant of dismissal, but reversed the award of fees. Relying on the rationale expressed in Christiansburg, this court stated that the “plaintiffs could not have known the likelihood of success on the merits of their claims until they had gathered all of their evidence.” Id. at 574. This court further reasoned that, since the trial court certified the plaintiffs’ class and ruled for the plaintiffs on the discovery issues, and since the plaintiffs attempted to buttress their claims with evidence, the plaintiffs did not act unreasonably in proceeding to trial. Finally, the court noted that the plaintiffs’ theory of a discriminatory pattern or practice afforded them “wide latitude in attempting to establish circumstantial evidence of unlawful intent.” Id. at 575. In light of all these factors, this court concluded that the trial court abused its discretion in awarding attorneys’ fees to the defendants.
In the present case, the district court based its award of fees both on its conclusion that the plaintiffs attempted “to confound” the defendants during the litigation by filing motions to restrain police operations and on its finding that the plaintiffs’ allegations lacked any factual substance from the outset. The court discussed several of the motions brought by the plaintiffs, pointing out that they sought to restrain police operations that either were outside the scope of the civil service promotional system or were expressly conditioned on the outcome of the plaintiffs’ suit. Memorandum Opinion dated May 15, 1983, at 5. However, the court did not discuss the specific information that formed the basis for the plaintiffs’ suit, and it did not explain why this information did not constitute adequate factual substance for the commencement of a nonfrivolous civil rights case. Plaintiff Hermes, for example, asserted in an affidavit, and the defendants have never disputed, that Koenig’s wife was involved in the political campaign of defendant Hein. Hermes also stated in his affidavit that he was warned by Koenig not to make waves with the administration. This factual evidence assuredly is inadequate to survive a motion for summary judgment on either the first amendment claim or the due process claim. Yet, when deciding whether plaintiffs’ claims are groundless, district courts should consider this type of evidence in light of the principle expressed in Christiansburg that factual uncertainty may exist at the outset of litigation and also in light of the wide latitude that this court in Ekanem allowed to plaintiffs’ attempts to establish circumstantial evidence of unlawful intent. Such consideration is especially important where, as here, the district court originally ruled that the plaintiffs’ allegations were sufficient to state a cause of action. See generally Ekanem v. Health & Hospital Corp., 724 F.2d at 575 (plaintiffs did not act unreasonably in pursuing suit where trial court certified plaintiffs’ class and ruled for plaintiffs on discovery issues); Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir.1983) (denial of attorneys’ fees to defendants was not abuse of discretion where district court permitted class claims to remain in case and plaintiff dropped claims when discovery pointed to lack of merit).
After a careful review of the record in this very close case, the principles stated in Christiansburg and Ekanem lead us to the conclusion that the information indicated by the plaintiffs in their answers to interrogatories and in Hermes’s affidavit were sufficient to constitute a nonfrivolous basis for suit, and the district court abused its discretion in holding otherwise. We recognize, however, in view of the plaintiffs’ motions to restrain police operations and the testimony obtained through depositions, that this suit may have become frivolous or vexatious at some point during the litigation. See Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 178; Christiansburg Garment Co. v. EEOC, 434 U.S. at 422, 98 S.Ct. at 700. The identification of such a point involves an assessment of the conduct of the parties at the various stages of litigation and thus is uniquely within the province of the district court. We therefore remand this case.
On remand, the district court should determine whether and when it should have become clear, in light of the plaintiffs’ failure to uncover necessary facts from discovery already taken, that further discovery would not have produced sufficient evidence of a genuine issue of material fact. It is only at such a juncture that the plaintiffs’ continued litigation might have become frivolous so as to justify attorneys’ fees for subsequent work. The district court should bear in mind the warning in Christiansburg against post hoc reasoning, 434 U.S. at 421-22, 98 S.Ct. at 700-01, and it should give due consideration to the Conte affidavit and to the necessarily circumstantial nature of the plaintiffs’ case. In particular, the Conte affidavit appears to contain the suggestion that the entire promotion process, involving the chief and the mayor in selecting the Commissioners, was affected by political concerns.
Although we realize the difficulty of determining exactly when during the discovery process litigation might have become frivolous, it is important, with the burgeoning number of lawsuits filed each year, that trial courts review and specifically note the lack of progress of pending cases. Such monitoring enables trial courts, at early stages in litigation, to alert certain plaintiffs to the perilous course that their suits may be taking due to an increasingly apparent lack of support for their claims. In addition, a record that reflects such judicial oversight during discovery can later provide a point of reference for awarding fees in a manner that encourages the abandonment of claims that become hopeless, but does not discourage the non-frivolous filing of civil rights suits. Moreover, it is only with specific references by the district court to a monitored discovery record that appellate courts can conduct meaningful review of fee awards.
Accordingly, we affirm the district court’s grant of summary judgment, and we remand for further determination of the issue of attorneys’ fees consistent with this opinion.
. During the course of the litigation, the plaintiffs added successors in office and police officers Ralston and Koenig as defendants.
. Prior to November 24, 1980, this case was before Judge Bua. On that date, the case was reassigned to Judge Kocoras.
. It is undisputed that political nonaffiliation is a right protected under the first amendment. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See also Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980).
. In an affidavit submitted in response to the defendants' motions for summary judgment, plaintiff Hermes stated that he "is informed and believes” that, during a 1975 election campaign and at the direction of Hein, Ralston examined garbage from the homes of Hein’s political opponents in search of politically damaging material. We can find no fact in the record to support this belief. Although the plaintiffs point to the deposition of Harvey Gorman, we note that Gorman stated only that he had heard about a search of garbage but that he never heard that Ralston took part in the search. Deposition of Harvey Gorman at 62-63.
. The plaintiffs state in their brief that Officer William Hoos, who was competing for promotion to sergeant, received additional seniority points and a higher ranking on the eligibility roster only after he discussed his seniority points with the Commissioners and submitted a resume containing a pledge of loyalty to the current political administration. Appellants’ Brief at 23-24, 27. Our review of Hoos's deposition, however, reveals that Hoos submitted his resume to the Commissioners at the time of his oral interview during the competition for promotion. Deposition of William Hoos at 37. Hoos stated that, after his oral examination, the initial sergeant eligibility list was posted, and Hoos ranked very low due to the fact that he received minimal seniority points. Id. at 26. Hoos later was awarded additional seniority points after he informed the Commissioners that other officers with comparable employment histories had been given additional points in similar situations. Id. at 31-33. Based on this testimony of Hoos, who is not a party in this action, and based upon a lack of evidence that Hoos had any political affiliations, we cannot reasonably infer that political favoritism led the Commissioners to manipulate Hoos's promotional ranking.
. The plaintiffs recount in their brief that, when Hermes was denied promotion to the rank of lieutenant, he received a note from the Commissioners explaining that "points were applied" and Ralston obtained the promotion. According to the plaintiffs, this communication informed the plaintiffs that it was the unwavering policy of the Village of Wheeling to promote the top-ranked candidate from every promotion eligibility list. We do not agree. The note received by Hermes is a brief explanation of the reasons for Ralston’s promotion. We cannaot reasonably infer that this note created a mutually explicit understanding that the application of points is and has been the sole criterion for promotion in the Wheeling Police Department.
. Although Christiansburg concerned an award of attorneys' fees to defendants under 42 U.S.C. § 2000e-5(k), the same principles apply under 42 U.S.C. § 1988. Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir.1981).
. The petition for certiorari in Ekanem was filed by the plaintiffs on the question of the dismissal of their claims. The issue of attorneys’ fees in Ekanem is not pending before the Supreme Court.
. In light of our remand, we need not address the plaintiffs’ contention that the amount of fees awarded by the district court is not supported by the record.
. We note that the 1983 amendments to the federal rules governing discovery “contemplate! ] greater judicial involvement in the discovery process and thus acknowledge! ] the reality that it cannot always operate on a self-regulating basis.” Fed.R.Civ.Pro. 26(b) advisory committee note. The current rules allow trial courts, acting upon their own initiative, to limit the frequency or extent of use of discovery methods if they determine that a "party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Fed.R.Civ.Pro. 26(b). It is through such sua sponte determinations that courts may detect lack of progress in pending cases.
Question: What is the total number of respondents in the case? Answer with a number.
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.
BARCLAY v. FLORIDA
No. 81-6908.
Argued March 30, 1983 —
Decided July 6, 1983
James M. Nabrit III argued the cause for petitioner. With him on the brief were Kenneth Vickers, Jack Green-berg, Joel Berger, John Charles Boger, Deborah Fins, James S. Liebman, and Anthony G. Amsterdam.
Wallace E. Allbritton, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Jim Smith, Attorney General.
Justice Rehnquist
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice O’Connor joined.
The central question in this case is whether Florida may constitutionally impose the death penalty on petitioner Elwood Barclay when one of the “aggravating circumstances” relied upon by the trial judge to support the sentence was not among those established by the Florida death penalty statute.
The facts, as found by the sentencing judge and quoted by the Florida Supreme Court, are as follows:
“[T]he four defendants were part of a group that termed itself the ‘BLACK LIBERATION ARMY’ (BLA), and whose apparent sole purpose was to indiscriminately kill white persons and to start a revolution and a racial war.
“The testimony showed that on the evening of June 17, 1974, Dougan, Barclay, Crittendon, Evans and William Hearn set out in a car armed with a twenty two caliber pistol and a knife with the intent to kill . . . any white person that they came upon under such advantageous circumstances that they could murder him, her or them.
“That as they drove around the City of Jacksonville they made several stops and observed white persons as possible victims, but decided that the circumstances were not advantageous and that they might be observed or thwarted .... At one stop, Dougan wrote out a note — which was to be placed on the body of the victim ultimately chosen for death.
“Eventually the five men headed for Jacksonville Beach where they picked up a hitch hiker, eighteen year old, Stephen Anthony Orlando. Against his will and over his protest they drove him to an isolated trash dump, ordered him out of the car, threw him down and Barclay repeatedly stabbed him with a knife. Dougan then put his foot on Orlando’s head and shot him twice— once in the cheek and once in the ear — killing him instantly.
“The evidence showed that none of the defendants knew or had ever seen Orlando before they murdered him. The note, which Dougan had previously written, was stuck to Orlando’s body by the knife of the murderers. The note read:
“‘Warning to the oppressive state. No longer will your atrocities and brutalizing of black people be unpunished. The black man is no longer asleep. The revolution has begun and the oppressed will be victorious. The revolution will end when we are free. The Black Revolutionary Army. All power to the people.’ . . .
“Subsequent to the murder the defendants Barclay and Dougan . . . made a number of tape recordings concerning the murder. These recordings were mailed to the [victim’s mother] and to radio and television stations. All of the tapes contained much the same in content and intent. [The court then reproduced typical excerpts from transcripts of the tapes, which included the following:]
“ ‘The reason Stephen was only shot twice in the head was because we had a jive pistol. It only shot twice and then it jammed; you can tell it must have been made in America because it wasn’t worth a shit. He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes. . . .’
“‘He died in style, though, begging, begging and pleading for mercy, just as black people did when you took them and hung them to the trees, burned their houses down, threw bombs in the same church that practices the same religion that you forced on these people, my people.
“‘We are everywhere; you cannot hide from us. You have told your people to get off the streets and to stay home. That will not help, for one night they will come home and we will be there waiting. It has been said, look for us and you cannot see us; listen for us and you cannot hear us; feel for us and you cannot touch us. These are the characteristics of an urban guerilla.’” Barclay v. State, 343 So. 2d 1266, 1267-1269 (1977).
Barclay and Dougan were convicted by a jury of first-degree murder. As required by the Florida death penalty statute, Fla. Stat. §921.141(1) (1977), a separate sentencing hearing was held before the same jury. The jury rendered advisory sentences under §921.141(2), recommending that Dougan be sentenced to death and, by a 7 to 5 vote, that Barclay be sentenced to life imprisonment. The trial judge, after receiving a presentence report, decided to sentence both men to death. He made written findings of fact concerning aggravating and mitigating circumstances as required by §921.141(3). App. 1-53. The trial judge found that several of the aggravating circumstances set out in the statute were present. He found that Barclay had knowingly created a great risk of death to many persons, § 921.141(5)(c), had committed the murder while engaged in a kidnaping, § 921.141(5)(d), had endeavored to disrupt governmental functions and law enforcement, §921.141(5)(g), and had been especially heinous, atrocious, or cruel. § 921.141(5)(h). See 343 So. 2d, at 1271.
The trial judge did not find any mitigating circumstances. He noted in particular that Barclay had an extensive criminal record, and therefore did not qualify for the mitigating circumstance of having no significant history of prior criminal activity. §921.141(6)(a). He found that Barclay’s record constituted an aggravating, rather than a mitigating, circumstance. 343 So. 2d, at 1270, and n. 2. The trial judge also noted that the aggravating circumstance of §921.141(5)(a) (“The capital felony was committed by a convict under sentence of imprisonment”) was not present, but restated Barclay’s criminal record and again found it to be an aggravating circumstance. App. 33-34. He made a similar finding as to the aggravating circumstance of § 921.141(5)(b) (“The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person”). Barclay had been convicted of breaking and entering with intent to commit the felony of grand larceny, but the trial judge did not know whether it involved the use or threat of violence. He pointed out that crimes such as this often involve the use or threat of violence, and stated that “there are more aggravating than mitigating circumstances.” Id., at 34-35.
The trial judge concluded that “[T]HERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO BOTH DEFENDANTS.” Id., at 48. He therefore rejected part of the jury’s recommendation, and sentenced Barclay as well as Dougan to death.
On the automatic appeal provided by Fla. Stat. §921.141 (4) (1977), the Florida Supreme Court affirmed. It approved the findings of the trial judge and his decision to reject the jury’s recommendation that Barclay be sentenced to life imprisonment. It concluded that “[t]his is a case . . . where the jury did not act reasonably in the imposition of sentence, and the trial judge properly rejected one of their recommendations.” 343 So. 2d, at 1271 (footnotes omitted).
This Court denied a petition for a writ of certiorari. 439 U. S. 892 (1978). However, the Florida Supreme Court later vacated its judgment, sua sponte, in light of our decision in Gardner v. Florida, 430 U. S. 349 (1977), and remanded to the trial court to give Barclay a full opportunity to rebut the information in the presentence report that was prepared for the trial judge. The trial court held a resentencing hearing, and reaffirmed the death sentence on the basis of findings that are essentially identical to its original findings. App. 82-141. On appeal, the Florida Supreme Court again affirmed, holding that Barclay had not been denied any rights under Gardner. 411 So. 2d 1310 (1981). Rehearing was denied by an equally divided court. Ibid.
I
Barclay has raised numerous objections to the trial judge’s findings. The Florida courts declined to reconsider these arguments in the resentencing proceedings. The resentenc-ing hearing was limited to ensuring that Barclay received all the rights to which he was entitled under Gardner. The Florida Supreme Court stated that it had “previously analyzed,” 411 So. 2d, at 1311, Barclay’s arguments, which were directed “against the findings previously reviewed here and affirmed,” and declined to “abrogate the ‘law of the case’” on these questions. Id., at 1310. Since the Florida Supreme Court held that it had considered Barclay’s claims in his first appeal, and simply refused to reconsider its previous decision in the second appeal, those claims are properly before us. Reece v. Georgia, 350 U. S. 85, 86-87 (1955).
A
Barclay argues that the trial judge improperly found that his criminal record was an “aggravating circumstance.” The State concedes that this is correct: Florida law plainly provides that a defendant’s prior criminal record is not a proper “aggravating circumstance.” Mikenas v. State, 367 So. 2d 606, 610 (Fla. 1978).
B
Barclay also argues that the trial judge improperly found the “under sentence of imprisonment” and “previously been convicted of a [violent] felony” aggravating circumstances. The Florida Supreme Court, however, construed the trial judge’s opinion as finding that these aggravating circumstances “essentially had no relevance here.” 343 So. 2d, at 1271 (footnote omitted). We see no reason to disturb that conclusion. The trial judge plainly stated that Barclay “was not under sentence of imprisonment.” App. 120. The trial judge also stated in the same paragraph that Barclay’s criminal record “is an aggravating circumstance,” id., at 121, but this is simply a repetition of the error noted above.
Barclay also challenges the findings on several other aggravating circumstances. He claims that the trial court improperly found that he caused a great risk of death to many people, that the murder was committed during a kidnaping, that the murder was committed to disrupt the lawful exercise of a governmental function or the enforcement of the laws, and that the murder was especially heinous, atrocious, or cruel. All of these findings were made by the trial court and approved by the Florida Supreme Court under Florida law. Our review of these findings is limited to the question whether they are so unprincipled or arbitrary as to somehow violate the United States Constitution. We think they were not. It was not irrational or arbitrary to apply these aggravating circumstances to the facts of this case.
c
Barclay also contends that his sentence must be vacated because the trial judge, in explaining his sentencing decision, discussed the racial motive for the murder and compared it with his own experiences in the Army in World War II, when he saw Nazi concentration camps and their victims. Barclay claims that the trial judge improperly added a non-statutory aggravating circumstance of racial hatred and should not have considered his own experiences.
We reject this argument. The United States Constitution does not prohibit a trial judge from taking into account the elements of racial hatred in this murder. The judge in this case found Barclay’s desire to start a race war relevant to several statutory aggravating factors. The judge’s discussion is neither irrational nor arbitrary. In particular, the comparison between this case and the Nazi concentration camps does not offend the United States Constitution. Such a comparison is not an inappropriate way of weighing the “especially heinous, atrocious, or cruel” statutory aggravating circumstance in an attempt to determine whether it warrants imposition of the death penalty.
Any sentencing decision calls for the exercise of judgment. It is neither possible nor desirable for a person to whom the State entrusts an important judgment to decide in a vacuum, as if he had no experiences. The thrust of our decisions on capital punishment has been that “ ‘discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”’ Zant v. Stephens, 462 U. S. 862, 874 (1983), quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This very day we said in another capital case:
“In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar ‘central issue’ from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” California v. Ramos, post, at 1008.
We have never suggested that the United States Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors. But to attempt to separate the sen-tencer’s decision from his experiences would inevitably do precisely that. It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing. We expect that sentencers will exercise their discretion in their own way and to the best of their ability. As long as that discretion is guided in a constitutionally adequate way, see Proffitt v. Florida, 428 U. S. 242 (1976), and as long as the decision is not so wholly arbitrary as to offend the Constitution, the Eighth Amendment cannot and should not demand more.
II
In this case the state courts have considered an aggravating factor that is not a proper aggravating circumstance under state law. Barclay argues that a system that permits this sort of consideration does not meet the standards established by this Court under the Eighth and Fourteenth Amendments for imposition of the death penalty. As in Zant, supra, at 884, the question whether Barclay’s sentence must be vacated depends on the function of the finding of aggravating circumstances under Florida law and on the reason why this aggravating circumstance is invalid.
A
The Florida statute at issue in this case was upheld in Proffitt v. Florida, supra. The opinion of Justices Stewart, Powell, and Stevens described the mechanics of the statute as follows:
“[I]f a defendant is found guilty of a capital offense, a separate evidentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument....
“At the conclusion of the hearing the jury is directed to consider ‘[wjhether sufficient mitigating circumstances exist. . . which outweigh the aggravating circumstances found to exist; and . . . [biased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.’ §§ 921.141(2)(b) and (c) (Supp. 1976-1977). The jury’s verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge. The Florida Supreme Court has stated, however, that ‘[i]n order to sustain a sentence of death following a jury recommendation of
life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.’ Tedder v. State, 322 So. 2d 908, 910 (1975). . . .
“The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, ‘it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory][ ] mitigating circumstances ... to outweigh the aggravating circumstances.’ §921.141(3) (Supp. 1976-1977).
“The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. §921.141(4) (Supp. 1976-1977). The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to ‘[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. ... If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ State v. Dixon, 283 So. 2d 1, 10 (1973).” 428 U. S., at 248-251 (footnotes omitted) (emphasis supplied).
Thus the Florida statute, like the Georgia statute at issue in Zant v. Stephens, 462 U. S. 862 (1983), requires the sentencer to find at least one valid statutory aggravating circumstance before the death penalty may even be considered, and permits the trial court to admit any evidence that may be relevant to the proper sentence. Unlike the Georgia statute, however, Florida law requires the sentencer to balance statutory aggravating circumstances against all mitigating circumstances and does not permit nonstatutory aggravating circumstances to enter into this weighing process. E. g., Mikenas v. State, 367 So. 2d 606 (Fla. 1978). The statute does not establish any special standard for this weighing process.
Although the Florida statute did not change significantly between Proffitt and the decision below, the Florida Supreme Court has developed a body of case law in this area. One question that has arisen is whether defendants must be resentenced when trial courts erroneously consider improper aggravating factors. If the trial court found that some mitigating circumstances exist, the case will generally be remanded for resentencing. Elledge v. State, 346 So. 2d 998, 1002-1003 (Fla. 1977). See, e. g., Moody v. State, 418 So. 2d 989, 995 (Fla. 1982); Riley v. State, 366 So. 2d 19, 22 (Fla. 1978). If the trial court properly found that there are no mitigating circumstances, the Florida Supreme Court applies a harmless-error analysis. Elledge, supra, at 1002-1003. See, e. g., White v. State, 403 So. 2d 331 (Fla. 1981); Sireci v. State, 399 So. 2d 964, 971 (Fla. 1981). In such a case, “a reversal of the death sentence would not necessarily be required,” Ferguson v. State, 417 So. 2d 639, 646 (Fla. 1982), because the error might be harmless.
The Florida Supreme Court has not always found that consideration of improper aggravating factors is harmless, even when no mitigating circumstances exist. In Lewis v. State, 398 So. 2d 432 (Fla. 1981), for example, the defendant shot the victim once in the head through his bedroom window, killing him instantly. The jury recommended life imprisonment, but the trial judge sentenced Lewis to death, finding four aggravating circumstances and no mitigating circumstances. The Florida Supreme Court found that the evidence did not support three of the aggravating circumstances. It did find that the “under sentence of imprisonment” aggravating circumstance was properly applied because Lewis was on parole from a prison sentence when he committed the crime. On these facts, and with only this one relatively weak aggravating circumstance left standing, the Florida Supreme Court did not find harmless error, but rather remanded for resentencing.
The Florida Supreme Court has placed another check on the harmless-error analysis permitted by Elledge. When the jury has recommended life imprisonment, the trial judge may not impose a death sentence unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975). In Williams v. State, 386 So. 2d 538, 543 (1980), and Dobbert v. State, 375 So. 2d 1069, 1071 (1979), the Florida Supreme Court reversed the trial judges’ findings of several aggravating circumstances. In each case at least one valid aggravating circumstance remained, and there were no mitigating circumstances. In each case, however, the Florida Supreme Court concluded that in the absence of the improperly found aggravating circumstances the Tedder test could not be met. Therefore it reduced the sentences to life imprisonment.
B
The trial judge’s consideration of Barclay’s criminal record as an aggravating circumstance was improper as a matter of state law: that record did not fall within the definition of any statutory aggravating circumstance, and Florida law prohibits consideration of nonstatutory aggravating circumstances. In this case, as in Zant v. Stephens, 462 U. S., at 887-888, nothing in the United States Constitution prohibited the trial court from considering Barclay’s criminal record. The trial judge did not consider any constitutionally protected behavior to be an aggravating circumstance. See id., at 884. And, again as in Zant, nothing in the Eighth Amendment or in Florida law prohibits the admission of the evidence of Barclay’s criminal record. On the contrary, this evidence was properly introduced to prove that the mitigating circumstance of absence of a criminal record did not exist. This statutory aggravating circumstance “plausibly described aspects of the defendant’s background that were properly before the [trial judge] and whose accuracy was unchallenged.” Id., at 887.
C
The crux of the issue, then, is whether the trial judge’s consideration of this improper aggravating circumstance so infects the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court to let the sentence stand. It is clear that the Court in Proffitt did not accept this notion. Indeed, the joint opinion announcing the judgment listed the four aggravating circumstances that had been found against Proffitt, and one of them — “the petitioner has the propensity to commit murder” — was not and is not a statutory aggravating circumstance in Florida. 428 U. S., at 246 (opinion of Stewart, Powell, and Stevens, JJ.).
That opinion did state:
“The petitioner notes further that Florida’s sentencing system fails to challenge the discretion of the jury or judge because it allows for consideration of nonstatutory aggravating factors. In the only case to approve such a practice, Sawyer v. State, 313 So. 2d 680 (1975), the Florida court recast the trial court’s six nonstatutory aggravating factors into four aggravating circumstances — two of them statutory. As noted earlier, it is unclear that the Florida court would ever approve a death sentence based entirely on nonstatutory aggravating circumstances. See n. 8, supra,” Id., at 256-257, n. 14.
While this statement may properly be read to question the propriety of a sentence based entirely on nonstatutory aggravating factors, it is clear that the opinion saw no constitutional defect in a sentence based on both statutory and nonstatutory aggravating circumstances. See also California v. Ramos, post, at 1007-1009, quoting Zant, supra, at 878.
Barclay’s brief is interlarded with rhetorical references to “[ljawless findings of statutory aggravating circumstances,” Brief for Petitioner 33, “protective pronouncements which . . . seem to be turned on and off from case to case without notice or explanation,” id., at 93, and others in a similar vein. These varied assertions seem to suggest that the Florida Supreme Court failed to properly apply its own cases in upholding petitioner’s death sentence. The obvious answer to this question, as indicated in the previous discussion, is that mere errors of state law are not the concern of this Court, Gryger v. Burke, 334 U. S. 728, 731 (1948), unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.
In any event, we do not accept Barclay’s premise. Cases such as Lewis, supra, Williams, supra, and Dobbert, supra, indicate that the Florida Supreme Court does not apply its harmless-error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. See n. 9, supra. “What is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant, supra, at 879 (emphasis in original).
In this case, as in Zant, supra, at 890, our decision is buttressed by the Florida Supreme Court’s practice of reviewing each death sentence to compare it with other Florida capital cases and to determine whether “the punishment is too great.” State v. Dixon, 283 So. 2d 1, 10 (1973). See, e. g., Blair v. State, 406 So. 2d 1103, 1109 (Fla. 1981). It is further buttressed by the rule prohibiting the trial judge from overriding a jury recommendation of life imprisonment unless “virtually no reasonable person could differ.” Tedder v. State, supra, at 910.
The judgment of the Supreme Court of Florida is
Affirmed.
Evans and Crittendon, who did not actually kill Orlando, were convicted of second-degree murder and sentenced to 199 years in prison. Hearn pleaded guilty to second-degree murder and testified for the prosecution.
The Florida Supreme Court stated:
“The trial judge noted five aborted attempts to select a victim from the streets of Jacksonville before Stephen Criando was chosen, plus the taped threat made to white Jacksonville citizens that a race war had begun and none would be safe.” 343 So. 2d, at 1271, n. 4.
The Florida Supreme Court stated:
“The basis for this finding was the judge’s observation that the notion of a race war essentially threatened the foundations of American society.”
Id., at 1271, n. 5.
The Florida Supreme Court noted that the tape recordings petitioner and Dougan made “explained how Stephen Orlando had begged for his life while being beaten and stabbed before Dougan ‘executed’ him with two pistol shots in the head.” Id., at 1271, n. 6.
The differences between this case and Godfrey v. Georgia, 446 U. S. 420 (1980), are readily apparent. Godfrey killed his wife and his mother-in-law with a single shotgun blast each. Each died instantly. There was no torture or aggravated battery. The state court nonetheless found that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code §27-2534.1(b)(7) (1978). It found no other aggravating circumstances. We concluded that, on the facts of the case, such a finding could only have resulted from a “standardless and unchannelled” decision based on “the uncontrolled discretion of a basically uninstructed jury.” 446 U. S.; at 429.
The concluding sections of the trial judge’s opinion read as follows:
“CONCLUSION OF THE COURT
“THERE ARE SUFFICIENT AND GREAT AGGRAVATING CIRCUMSTANCES WHICH EXIST TO JUSTIFY THE SENTENCE OF DEATH AS TO THE DEFENDANT ELWOOD CLARK BARCLAY.
“AUTHORITY FOR SENTENCE
“That under Florida Law the Judge sentences a defendant, convicted of Murder in the First Degree, either to death or life imprisonment. This is an awesome burden to be placed upon the Judge — but in the landmark Florida case of State v. Dixon, 283 So. 2d 1, the Florida Supreme Court said that when such discretion can ‘be shown to be reasonable and controlled, rather than capricious and discriminatory,’ then it meets the test of Furman v. Georgia, 408 U. S. 238.
“COMMENTS OF JUDGE
“My twenty-eight years of legal experience have been almost exclusively in the field of Criminal Law. I have been a defense attorney in criminal cases, an Advisor to the Public Defender’s Office, a prosecutor for eight and one-half years and a Criminal Court and Circuit Court Judge — Felony Division — for almost ten years. During these twenty-eight years I have defended, prosecuted and held trial in almost every type of serious crime.
“Because of this extensive experience, I believe I have come to know and understand when, or when not, a crime is heinous, atrocious and cruel and deserving of the maximum possible sentence.
“My experience with the sordid, tragic and violent side of life has not been confined to the Courtroom. I, like so many American Combat Infantry Soldiers, walked the battlefields of Europe and saw the thousands of dead American and German soldiers and I witnessed the concentration camps where innocent civilians and children were murdered in a war of racial and religious extermination.
“To attempt to initate such a race war in this country is too horrible to contemplate for both our black and white citizens. Such an attempt must be dealt with by just and swift legal process and when justified by a Jury verdict of guilty — then to terminate and remove permanently from society those who would choose to initiate this diabolical course.
“HAD THE DEFENDANT BEEN EXPOSED TO THE CARNAGE OF THE BATTLEFIELDS AND THE HORRORS OF THE CONCENTRATION CAMPS INSTEAD OF MOVIES, TELEVISION PROGRAMS AND REVOLUTIONARY TRACTS GLORIFYING VIOLENCE AND RACIAL STRIFE — THEN PERHAPS HIS THOUGHTS AND ACTIONS WOULD HAVE TAKEN A LESS VIOLENT COURSE.
“Having set forth my personal experiences above, it is understandable that I am not easily shocked or moved by tragedy — but this present murder and call for racial war is especially shocking and meets every definition of heinous, atrocious and cruel. The perpetrator thereby forfeits further right to life — for certainly his life is no more sacred than that of the innocent eighteen year old victim, Stephen Anthony Orlando.” App. 135-139..
The trial judge discussed this point in the course of finding the “great risk of death to many persons,” “disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws,” and “especially heinous, atrocious, or cruel” statutory aggravating circumstances.
Barclay does not, and could not reasonably, contend that the United States Constitution forbids Florida to make the defendant’s criminal record an aggravating circumstance. Thus, this case is distinguishable from Zant v. Stephens, 462 U. S. 862 (1983), where one of the three aggravating circumstances found in Georgia state court was found to be invalid under the Federal Constitution. Of course, a ‘“mere error of state law’ is not a denial of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982), quoting Gryger v. Burke, 334 U. S. 728, 731 (1948). Thus we need not apply the type of federal harmless-error analysis that was necessary in Zant, supra, at 884-889.
Barclay does not contend that the Florida Supreme Court erred in applying the “law of the case” doctrine to this case. His claim seems to be, rather, that the errors in this case were so egregious and the flaws in the Florida statute are so fundamental that his sentence cannot constitutionally be permitted to stand. The Florida Supreme Court did not address Barclay’s arguments in precisely the terms he now uses. But, so far as we can tell from the record before us, Barclay did not make his arguments in the same terms on his first appeal. We know from the Florida Supreme Court’s opinion in the second appeal that it regarded these questions as having been decided in its first opinion. See supra, at 946. It appears, contrary to Justice Marshall’s assertion, post, at 989, that any fault, if fault there be, for failure to elaborate more fully on the relationship of this case to other Florida cases may well lie at the door of petitioner, and not the Supreme Court of Florida.
We have, in some similar circumstances, certified a question to the State Supreme Court in order to ascertain as precisely as possible the state-law basis for a sentence. See Zant v. Stephens, 456 U. S. 411, 416-417 (1982). But that procedure would be inappropriate here. Unlike Zant, which was a habeas case that originated in the federal court system, this case has already been twice reviewed by the Supreme Court of Florida. On petitioner’s second appeal the Supreme Court of Florida declined to address the questions he presents to this Court. Under these circumstances, certification to the Supreme Court of Florida would be little more than a pointed suggestion that it retreat from its “law of the case” position. While we may reverse or modify a state-court judgment which we find erroneously disposes of a federal question, we will not certify a question in these circumstances.
In fact, even before this Court decided Lockett v. Ohio, 438 U. S. 586 (1978) (evidence at sentencing phase cannot be limited to statutory mitigating circumstances), the Florida Supreme Court had construed this statute to permit consideration of any mitigating circumstances. See Songer v. State, 365 So. 2d 696, 700 (Fla. 1978) (citing cases). The opinion of Stewart, Powell, and Stevens, JJ. explicitly recognized that § 921.141(5) does not include language limiting mitigating circumstances to those listed in the statute, but § 921.141(6) provides that “aggravating factors shall be limited to” the statutory aggravating circumstances. 428 U. S., at 250, n. 8. It is not clear from the opinion itself why the opinion inserted the word “statutory” in brackets when quoting § 921.141(b)(3).
The language of the statute, which provides that the sentencer must determine whether “sufficient aggravating circumstances exist,” §921.141(3
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_appel1_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
TRUSTEES SYSTEM CO. OF PENNSYLVANIA v. PAYNE et al., and four other cases.
Nos. 5077-5081.
Circuit Court of Appeals, Third Circuit.
May 1, 1933.
Charles A. Wolfe and Montgomery & McCracken, all of Philadelphia, Pa., for appellants.
Grover C. Ladner, Harry Felix, and Roy Livingstone, all of Philadelphia, Pa., for ap-pellees.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
WOOLLEY, Circuit Judge.
These appeals are from like decrees of the District Court appointing receivers for the five defendant corporations in very exceptional circumstances. The questions involved are jurisdictional. As questions of jurisdiction are to be determined from the allegations of the bills, not from the facts as they may turn out, Mosher v. City of Phoenix, 287 U. S. 29, 30, 53 S. Ct. 67, 77 L. Ed. 148, and rest accordingly on whether the allegations set forth a substantial claim in equity, Levering & Garrigues Co. v. Morrin, 289' U. S.-, 53 S. Ct. 549, 77 L. Ed.-, we shall decide the ease on the bills (all being substantially the same) and on a stipulation by counsel rather than on the evidence. These show that many closely linked corporations were engaged in different ways in a single comprehensive business of lending to homeowners small sums of money, not in excess of $300 to each borrower, and selling to them, or any one else, securities of certain of the corporations.
This business was conducted on a huge scale in eight states through the media of thirty corporations organized in groups of which the Pennsylvania group, the only one with which we are concerned, is an example.
The Trustees System Service Corporation, organized under the laws of Virginia with its main offices at Chicago, was the center of the system and in this litigation is referred to as the parent corporation. It owned all the capital stock (except qualifying shares) of the Trustees System Company of Pennsylvania which for convenience we shall call Trustees of Pennsylvania. This corporation owned in turn all the stock of the Trustees System Company of Reading and the Trustees System Company of Philadelphia, called, respectively, Trustees of Reading and Trustees of Philadelphia. Trustees of Reading owned all the stock of Truseo Company of Reading, and Trustees of Philadelphia owned all the stock of Truseo Company of Philadelphia, herein referred to, respectively, as Truseo of Reading and Truseo of Philadelphia. The five subsidiaries axe, it is averred, corporations of Pennsylvania. Their capital, paid in or earned, is not stated.
The corporate structure of the system however did not end here. Two more corporations were tied up with those we have named. These were the Industrial Loan and Guaranty Company and the Trustees System Extension Corporation, regarded and referred to as affiliates. Their capital structure is not given nor is it important. Enough is stated to show that the Industrial owned in some instances practically all and in others a majority of the several classes of common stock of the parent corporation, and Extension owned certain of its preferred stock. Of the balance much was owned by the public. There is nothing to show who owned the stock of Industrial and Extension.
The six system corporations were organized and they function in this fashion: P. J. Gibbons, the president, and J. G. Bom, the secretary-treasurer of the parent corporation, were the president and secretary-treasurer of each of the subsidiary corporations. They also constituted a majority of the board of directors of the parent corporation and, similarly, a majority of the boards of directors of the five subsidiary corporations. Thus all corporate powers were reposed in these two men.
Por convenience in illustrating what 'the systems did in their different spheres of operation, we shall run down the line of descent from the parent corporation at Chicago to its Philadelphia offsprings, the Reading line, and the lines elsewhere, being the same except in name and place.
The system made its profits from interest on money loaned and from the sale of stock of the parent corporation and of “gold notes” of that corporation — unsecured promissory notes payable in gold — and gold notes of Trustees Systems in various cities, in this case Trustees of Philadelphia, guaranteed by the parent corporation. (Outstanding guaranteed gold notes of all subsidiaries amount to $5,217,704.) Money acquired from the public flawed through the system in this way: The Truseos were supplied by the parent corporation in Chicago with money with which to make loans to the public. The Truseo of Philadelphia, for instance, on receiving such a loan immediately became a debtor of the parent corporation for the amount advanced. This money was deposited to the credit of Truseo in one bank and was drawn upon for local use. Money received from the public in payment of interest, repayment of loans and purchase of gold notes was placed in another bank not subject to withdrawal locally but to be withdrawn only by the two officers of the parent corporation in Chicago, who, as we have shown, were likewise officers of Truseo of Philadelphia and of the other subsidiaries. In this way money flowed from all the far-flung Truseo Companies to a central reservoir at Chicago, that of the parent corporation. But all of it did not stop there, for the reservoir had two outlets. Through them much money flowed to the Industrial and Extension corporations, promotion affiliates, in payment of promotion costs and commissions, amounting in the ease of the Extension for the years 1930, 1931 and ten months of 1932 to $5,120,000, and thence on to their stockholders whoever they were.
It should be kept in mind that profits could be earned by one corporation or another only from the use of the parent corporation’s money or from the purchase of the corporations’ securities by the public, loaned, sold and collected by the Trustees of Pennsylvania, Trustees of Philadelphia and Trus-eo of Philadelphia, whieh occupied the same office, had the same controlling officers and were served by the same employees, and that the money so received by one Or another of these corporations could be drawn out and sent west by the two officers common to all of them. The precise position of the Trustees of Pennsylvania and Trustees of Philadelphia as money earners in the system is, except as to the sale of notes, a little vague. But it is very clear that by reason of the identity of officers and of a majority of the directors in all the corporations, those officers could at will, according to the money needs of the parent corporation or for any other reason, keep one, or another, or all of the underlying corporations solvent or insolvent.
On October 28,1932, the District Court of the United States for the Northern District of Illinois appointed receivers for the parent corporation at Chicago. Thereupon the whole thing collapsed. Immediately there sprang up a Protective Committee composed of citizens of New York who, on an averment that they were stockholders and note holders of the parent corporation under a deposit agreement whereby all the right, title and interest of original stockholders and note holders (in excess of $3000) were transferred to them and that “by reason of said agreement” they became creditors and stockholders, respectively, of the five defendant corporations, filed six bills in the District Court of the United States for the Eastern District of Pennsylvania for receivers of the six corporations, one ancillary to the Chicago receivership, the others nominally primary, “in order to preserve the status of the creditors in the State of Pennsylvania with respect to the above corporation (s) in view of the attitude (ability) of the receivers of the parent corporation” to drain the money from the Pennsylvania subsidiaries to the central receivership at Chicago. Regarding the decree for receivers of the parent corporation in Illinois as evidence of a proper case for the appointment of receivers in Pennsylvania, 23 R. C. L. § 157; Bluefields S. S. Co. v. Steele (C. C. A.) 184 F. 584, the court appointed ancillary receivers for the parent corporation and “permanent” receivers for each of the subsidiary corporations. The receivers were the same in each case. The main receivers for the parent corporation did not resist nor have they appealed from the appointment of ancillary receivers but the five defendant subsidiary corporations, evidently acting in concert with authorities in Chicago, have appealed from the decrees of the court below on a variety of grounds in which they are wholly right or wholly wrong according to what the bills disclose to be the real situation in equity.
Reduced to simplest terms, appellant-defendants in these five eases contend that the decrees appointing receivers and making them permanent should be vacated and the bills dismissed for want of equity, because
(1) The plaintiffs have no equitable interest in the defendants either as creditors or stockholders.
(2) The bills do not pray for any equitable relief.
(3) The bills show on their face that the defendant corporations are solvent.
(4) The Trustees System Company of Pennsylvania is a foreign corporation with no fixed assets in this jurisdiction.
(5) The bills were not verified by oath of plaintiffs or some one having knowledge of the facts.
All of these contentions are based squarely on the proposition that the primary receivers were appointed for five separate and .distinct corporations, all of which were solvent, on the motion of persons who were neither stockholders nor creditors. If these five subsidiaries were so independent of the parent corporation and of one another that the stockholders and note holders of the parent corporation had no interest in them, it follows that the plaintiffs have no equitable right and the court could afford no equitable relief in respect to them and; in consequence, the defendant corporations must prevail absolutely. If, on the contrary, these five separately created corporations have failed to keep apart and maintain independence, it may be that their ease will fail and the decrees be sustained.
These are the central questions about which the whole case revolves. On their answers, one way or another, the law will fall into its proper place and the decision will plainly follow.
In approaching these questions we are confronted by certain fixed principles of equity which cannot be overlooked and therefore should be met frontally. This we shall do.
Assuming for the moment that the plaintiffs are creditors and stockholders of the defendant corporations, we first inquire whether as such they have any equitable rights to be relieved; and assuming, as we must oil the averments of the bills, that the defendant corporations are solvent, we next inquire what relief a court of equity can afford the plaintiffs?
On these assumptions the plaintiffs technically are stockholders and unsecured simple contract creditors of solvent corporations which, before resorting to legal remedies, they sought to put into receivership. From this plain statement of the case we have assumed and (a part) which the defendants have asserted, the inhibitions of the law stand out boldly. A stockholder of a solvent corporation has, save in exceptional circumstances, no right to ask for, and a court of equity has no power to order, the appointment of receivers. Nor has a court of equity power to appoint receivers for a corporation, solvent or insolvent, on a bill filed by unsecured simple contract creditors unless the corporation waives the question of jurisdiction and consents to a decree. Flershem et al. v. National Radiator Corporation et al. (C. C. A.) 64 F.(2d) 847; In re Metropolitan Railway Receivership, 208 U. S. 90, 109, 110, 28 S. Ct. 219, 52 L. Ed. 403. This is for the reason that “an unsecured simple contract creditor has, in the absence of statute, no substantive right, legal or equitable, in or to the property of his corporate debtor.” His only substantive right is to have his debt paid in due course. “His adjective right is, ordinarily, at law. He has no right whatsoever in equity until he has exhausted his legal remedy.” Having exhausted his legal remedy, and the debt or a portion of it remains unpaid, he may resort to equity by a creditor’s bill. Hollins v. Brierfield C. & I. Co., 150 U. S. 371, 14 S. Ct. 127, 37 L. Ed. 1113; Pusey & Jones Company v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763; Michigan v. Michigan Trust Company, 286 U. S. 334, 52 S. Ct. 512, 76 L. Ed. 1136; Shapiro v. Wilgus, 287 U. S. 348, 53 S. Ct. 142, 77 L. Ed. 355; Flershem et al. v. National Radiator Corporation (C. C. A.) 64 F.(2d) 847. And so, if these five defendant corporations were separate and distinct entities, independent of the parent corporation and of one another, the decrees appointing the receivers cannot be sustained and that is the end of the case.
But the court will not accept the independence of these several corporations from the mere fact that they were separately created. It is bound to regard the uses to which they were put in the huge financial scheme, examine the part they were made to play by powers equally controlling upon all of them and determine whether the things they did were done-separately for themselves or jointly for others. The court must, as it may, determine whether the five corporations were separate entities or were mere departments or agencies of the parent corporation. It must look and see whether in fact all these corporations were one, and whether there was that identity which lifts them out of the law of separate entities. We surmise that it was to avoid this very thing that the highly complex corporate structure of the scheme and the capital structure of the corporate units were created.- The corporate and capital structure of the Pennsylvania group fairly bristles with legal obstacles to invasion by creditors or disturbance by stockholders. If the structure as originally conceived is left undisturbed, the receivers for the parent corporation can do very much as the parent corporation itself did before the receivership, that is, drain off assets from the subsidiaries and dispose of them without ancillary receiverships to guard local .assets and watch over local creditors, thus leaving the local corporations financially dry and compelling their creditors to betake themselves to Chicago.
It is recognized in principle that the fiction of corporate entity may be disregarded where one corporation is so organized and controlled and its affairs are so conducted that it is, in fact, a mere instrumentality or adjunct of another corporation. Chicago, Milwaukee & St. Paul Ry. Co. v. Minneapolis Civic & Commerce Association, 247 U. S. 490, 38 S. Ct. 553, 62 L. Ed. 1229; In re Rieger et al. (D. C.) 157 F. 609; Brown v. Pennsylvania Canal Company (C. C. A.) 235 F. 669; Brown v. Pennsylvania R. Co. (C. C. A.) 250 F. 513; Industrial Research Corporation v. General Motors Corporation (D. C.) 29 F. (2d) 623, 625; Central Republic Bank & Trust Company v. Caldwell (C. C. A.) 58 F. (2d) 721. Through long practice courts have not hesitated to disregard the doetrine of corporate entities when the facts justify it. Although we know of no instance in which it has been done in matters of receivership, we cannot see why the same power does not exist in a court or why the law does not impose upon a court the same duty in a receivership matter when, as here, the facts are substantial enough to justify, indeed to compel, a finding that the five corporations were so identified with the parent corporation as to be a part of it. Being of opinion that the law makes no exception of receiverships, we tear asunder the legal maze of corporate fiction in which they have enveloped themselves and, observing that the six corporations were not merely related by stock ownership but, like wheels in a machine, were so closely meshed that all functioned together, we find from the bills that in legal effect they were one, a finding in consonance with the casual statement of the attorney for the parent corporation at the'hearing that “the whole thing from Alabama to Pennsylvania is really one company.”
That finding changes the whole point of the several contentions which the appellant-defendants have made in respect to themselves as separate entities and, renders inapplicable the authorities cited to sustain them. We shall, nevertheless, very briefly dispose of their contentions as they bear on a situation of the unitary character we have found this one to be.
As to the appellants’ first contention that “The plaintiffs (constituting a Protective Committee) have no equitable interest in the defendants either as creditors or stockholders,” 53 C. J. 27, § 12; Pusey & Jones Company v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763, it should be observed that the plaintiffs averred in the bills jhat they were‘holders of stock and notes'of the parent corporation in sums above the jurisdictional amount by reason of assignments by holders thereof under a deposit agreement of all their right, title and interest therein. Assuming, as we must, the truth of this averment, that made the plaintiffs at least unsecured simple contract creditors of the parent corporation, with a right to sue or proceed thereon. Bullard v. City of Cisco, Tex. (C. C. A.) 62 F.(2d) 313, 315. On this showing ancillary receivers for that eorporation.were appointed without opposition. The plaintiffs further averred that by reason of that ownership they were creditors of the five defendant corporations. The validity of that averment turns on the question we have decided whether the Pennsylvania group of corporations had maintained or lost their separate entities. Having found that they had not maintained them, the plaintiffs’ character of creditors of the parent corporation extends to the corporate departments or agencies which it embraced. Although holders of gold notes of one of the Pennsylvania subsidiaries, guaranteed by the parent corporation, have intervened, either seasonably or belatedly, we shall, in adhering to the bills, hold the plaintiffs to their own showing. This compels a finding that they had equitable rights sufficient to move for an ancillary receivership for the parent corporation, which is not questioned, and, in view of the identity of the several corporations, they had equitable rights sufficient to move for and obtain receivers for the five defendant subsidiary corporations which, though termed primary receivers, are in principle, because of unity, ancillary receivers. Gatch, Tennant & Co. v. M. & O. Ry. Co. (D. C.) 59 F.(2d) 217.
The appellants’ next contention — that “the bills do not pray for any equitable relief” — we regard as insubstantial. The bills expressly pray for receivers for the five defendant corporations in order that the entire matter may be co-ordinated with the ancillary receivership and the plaintiffs’ rights in respect to the defendant corporations be adjudicated, that is, the right to conserve their assets and have distribution thereof — whether in the ancillary jurisdiction or in that of the main receivership, 23 R. C. L. § 157 — in the way prescribed by equity in relation to ancillary and primary receiverships. Superior Cabinet Corporation v. American Piano Company (D. C.) 39 F.(2d) 87; Clark on Receivers (2d Ed.) § 321; Frowert v. Blank, 205 Pa. 299, 54 A. 1000. This, clearly, is relief which equity can and, on a proper showing, will afford. Such a showing, we hold, has been made.
The appellants next contend that the bills reveal that the defendant corporations are solvent. They do. But that does not help the appellants on our finding of lost entities. If a main receivership be granted for a solvent corporation, its solvency does not prevent a court in another jurisdiction from appointing ancillary receivers, Brooks v. Smith (C. C. A.) 290 F. 33, which is what the court below did in fact as to one receivership and in principle as to the others', not to wind them up but to protect local creditors as to local assets in the administration of their affairs. We are not informed whether the parent corporation is solvent or insolvent. The indications are that it is insolvent.
The appellants’ fourth contention is that “Trustees of Pennsylvania is a foreign corporation with no fixed assets in Pennsylvania.” Whether or not that is true is not disclosed by the record, nor is it a subject of any assignment of error unless it be read from such general assignments as “the court erred in appointing receivers,” “the court erred in entering the decrees.” Lack of specification in these assignments will not permit us to review the question raised here for the first time.
And, finally, the appellants’ contention that “the bills are not verified by oath of the plaintiffs (the Protective Committee) or someone having knowledge of the facts,” falls, on the bills’ own showing that they were verified by oath of Harry Wallaeh, a member and the secretary of the Protective Committee, and therefore one of the unsecured simple contract creditors, to the effect that “the facts set forth are true and correct to the best of his knowledge, information and belief.”
Equity Rule 25, subd. 5 (28 USCA § 723), is invoked in eases of “special relief pending the suit,” ordinarily in matters of injunction. This of course must be' “by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked,” yet even if the application for the appointment of ancillary receivers in faet or in effect be a “special relief,” we regard the verification in this instance adequate in view of the position of the affiant and the facts alleged and not controverted.
The several decrees of the District Court here on appeal are affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
John Jeff LaGORGA, a minor, by Joseph LaGorga, his guardian and Joseph LaGorga and Bernadette LaGorga v. The KROGER COMPANY, a corp., Defendant and third-party plaintiff, v. Sidney H. EVANS, Individually and trading and doing business as Evans Manufacturing Co., and Evans Manufacturing Company, Incorporated, third-party defendant. The Kroger Company, third-party plaintiff, Appellant.
No. 17082.
United States Court of Appeals Third Circuit.
Argued Dec. 19, 1968.
Decided March 3, 1969.
Bruce R. Martin, Pittsburgh, Pa., for appellant. •
Wallace E. Edgecombe, Royston, Robb, Leonard, Edgecombe, Miller & Shorrall, Pittsburgh, Pa., for appellee.
Before SEITZ, ALDISERT and STAHL, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an appeal challenging the special verdict in a third party action and the judgment entered thereon.
In January, 1965, John Jeff LaGorga, a minor, by Joseph LaGorga, his guardian, and Joseph LaGorga and Bernadette LaGorga brought suit against the Kroger Co. to recover damages arising from injuries allegedly suffered when a jacket purchased from the Kroger Co. and worn by the minor plaintiff caught fire and burned. Kroger Company filed a third party complaint against Sidney H. Evans, individually and doing business as Evans Manufacturing Company (Evans) and against Evans Manufacturing Company, Inc. (Evans, Inc.), hereafter referred to collectively as “appellees.” In the original third party complaint, Kroger charged, inter alia, “Certain jackets identical to the one alleged by the plaintiffs to have been purchased from The Kroger Co. were purchased from and manufactured by appellees.” The third party defendants answered, and denied the charge “as stated” and more specifically averred as a first defense, that (1) Evans, Inc. had not manufactured the jacket in question; (2) Evans had sold certain jackets to the Kroger Co. and (3) Evans “has no knowledge as to whether or not the jacket allegedly worn by the minor plaintiff had been supplied to [The Kroger Co.] by [Evans].”
The Kroger Co. (appellant), in an effort to tie the third party defendants to the jacket in question, amended its complaint in October, 1965, to allege, inter alia:
“If it is established at the trial that the jacket involved was sold by The Kroger Co. * * * then said jacket was manufactured by and was purchased from Evans Manufacturing Co., also known as Evans Manufacturing Company, Incorporated, or as Sidney H. Evans, individually and trading and doing business as Evans Manufacturing Co.”
Appellees did not file an answer to the amended complaint.
At trial Kroger took the position that pursuant to Rule 8(d) of the Federal Rules of Civil Procedure, the unanswered allegation of the amended complaint amounted to an admission by the appellees that they manufactured the jacket in question. At the close of Kroger’s case, the district court, on Kroger’s motion and over appellees’ objection, admitted the admission into evidence. Immediately thereafter, counsel for the appellees announced, in his opening statement, that the appellees’ would prove that they had not manufactured the jacket worn by the minor plaintiff. Appellant unsuccessfully objected that the appellees had admitted parentage, i. e., manufacturing the jacket. At the close of the appellees’ case, on appellees’ motion, the “conditional admission” was stricken from evidence.
The jury returned a verdict against Kroger in the main suit. In the third party action, by special interrogatories, the jury found that the appellees had not manufactured the jacket worn by the minor plaintiff. Kroger moved for a new trial, which motion was denied. LaGorga v. Kroger Company, 275 F.Supp. 373, 383 (W.D.Pa., 1967).
Kroger now appeals from the special verdict in the third party action and the judgment entered thereon.
Appellant’s challenge is predicated on its contention that, as against appellant, the appellees admitted- manufacturing the jacket in question when they failed to file an appropriate response to appellant’s amended third party complaint and the district court erred in deciding to the contrary. The district court found that the allegations concerning the parentage issue in the original third party complaint and in the amended third party complaint were substantially the same. Thus, it concluded that appellees’ denial in their answer to the original complaint served equally to deny the averment in the amendment. Appellant attacks the district court’s premise of substantial similarity. The attack lacks merit.
It is true, as the appellant urges, that in the amended third party complaint appellees were charged with manufacture of the particular jacket worn by the minor plaintiff, while the original complaint merely alleged that the appellees had manufactured jackets identical to the one in question. However, appellees did not in their first defense address themselves to the failure of the original complaint to charge them with the manufacture of the jacket in question. Instead, their answer had the effect of denying that the appellees manufactured the jacket. While it would have been preferable for the appellees to respond directly to the amended complaint, in the circumstances of this case, the failure to specifically respond did not result in an admission under Rule 8(d) F.R.C.P.
Concededly, and as the district court observed, appellant could have been misled by the absence of a specific response to the amended complaint. However, any possible confusion generated in appellant’s mind by the absence of a specific response, should have been dispelled by the pretrial stipulation which appellant’s counsel signed and which antedated the trial by some 7 months.
In addition to the foregoing, the appellant’s conduct at trial belies any contention that the appellant was surprised to its prejudice when the trial of the third party action focused on the issue of parentage. To the contrary, it was the appellant who introduced the issue when it called Jack Piet, in its case in chief, for, in the words of appellant’s counsel, “ * * * the very narrow purpose of proving from whom these jackets came.” In these circumstances, accepting appellant’s contention would be to reject the well established principle that, under the federal rules pleading is a vehicle “ 'to facilitate a proper decision on the merits’ ” and not “ ‘a game of skill in which one misstep by counsel may be decisive * * * United States v. Hougham, 364 U.S. 310, 317, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960).
Beyond the challenge just discussed, appellant also contends that the district court erred when, at the close of all the testimony, it struck from evidence the paragraph of the amended complaint which appellant had previously introduced as an admission. Fatal to appellant’s contention is our approval of the district court’s determination that there was no admission. It is significant also that, although appellant’s counsel vigorously opposed the motion to strike, and moved for a mistrial when the district court granted the motion,' he neither asked for a continuance to produce further evidence, nor did he ask leave to reopen his case to offer additional testimony or documentary evidence at that time.
Accordingly, the judgment of the district court will be affirmed.
. The pertinent parts of the pretrial stipulation are set forth in the district court opinion. LaGorga v. Kroger, supra, p. 385, n. 24.
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_bus
|
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.
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.
David LUXENBERG, Appellant, v. MAYFAIR EXTENSION, INC., et al., Appellees.
No. 20204.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 16, 1966.
Decided July 26, 1967.
Mr. Warren E. Magee, Washington, D. C., with whom Messrs. Thomas G. Laughlin and Hans A. Nathan, Washington, D. C., were on the brief, for appellant.
Mr. Joel C. Wise, Washington, D. C., with whom Mr. Roger Peed, Washington, D. C., was on the brief, for appellees.
Before Bazelon, Chief Judge, and Danaher, Circuit Judge, and Coffin, Circuit Judge of the United States Court of Appeals for the First Circuit.
Sitting by designation pursuant to 28 U.S.C. § 291(a).
DANAHER, Circuit Judge:
The Board of Commissioners of the District of Columbia filed a complaint to enforce an order of the Department of Licenses and Inspections that appellee, Mayfair Extension, Inc., raze certain buildings wherein the appellant was lessee. The court entered an order accordingly on October 27, 1965. Having been joined in that action as a party defendant, Luxenberg had filed his third party complaint alleging an anticipatory breach by and claiming damages from Mayfair. This appeal challenges as erroneous the judgment which was entered in favor of the appellees.
I
The November, 1951 lease under which Luxenberg first gained status accorded “the exclusive right to conduct a food store in the present existing premises” for the duration of the lease “should said premises remain in existence, or until the present building * * * is demolished for reconstruction or replacement purposes.”
Additionally the lease specified “Upon the demolition of the present premises and upon completion of replacement facilities,” the lessee was to have “the first option to lease the food market and grocery facilities in said replacement facilities * * * ”
After an earlier renewal, the lease of the same premises was again extended for five years from August, 1961, its terms to remain in full force and effect, with certain modifications. The lease as modified was executed in the name of Mayfair Extension, Inc. by L. S. Michaux, its president. The term was further extended for five years from November, 1966, just as the parties had agreed. Importantly, it was expressly provided that the lessee’s “first option to lease the food and grocery facilities which might replace the existing premises after the possible demolition thereof” (emphasis added) was to remain in full force except as to “the rate of rental to be paid in such case.” The lessee in the circumstance mentioned was to pay an amount equal to a bona fide offer which the lessor might receive from another prospective tenant. Luxenberg was to have thirty days after receipt of notice of any such terms “within which to elect to exercise said option to lease the said replaced facilities.”
It appears that the parties knew from the very outset of their dealings that the store structure was subject to demolition for non-compliance with a 1946 building permit. The trial judge found that the District’s proceedings had formally been initiated in September, 1962, had thereafter been carried through various administrative review steps but had culminated in a court order that the original structure be razed and that the lots be cleared by February 1, 1966.
It is apparent that the trial judge concluded, and we agree, that Luxenberg entitled to the rights of a lessee in the originally leased premises so long as they were permitted to stand. Otherwise, upon demolition of the building, the appellant had been accorded only the first option to lease the food and grocery facilities in a structure which “might” replace the leased premises. Mayfair was under no obligation to construct a new building. Moreover, it is clear that if and after replacement facilities actually should have been constructed, recognition of the timely exercise of Luxenberg’s option was to depend upon his matching whatever rate of rental might be specified in a bona fide offer to be submitted by another prospective tenant. We doubt that Luxenberg would seriously contend to the contrary respecting any of the foregoing conclusions. Moreover, he testified that he was “willing to meet a bona fide [rental] offer and am willing to pay it.”
But the demolished structure was not replaced. No time had been fixed within which Mayfair was to reach a decision. Mayfair may or may not rebuild the grocery store facilities. If it shall do so, Luxenberg may elect to exercise the option in accordance with the terms mentioned.
II
The appellant claimed at trial and argues here that the appellees were guilty of an anticipatory breach of his rights. His contention stems from the fact that the appellees as of May 14, 1964, acting through the appellee Michaux, had signed a lease with a supermarket chain, Grand Union Company. The term was to run until July 31, 1980, and the premises included the very area covered by Luxenberg’s option. The appellant argues that because of the provisions of that instrument, the appellees had put it beyond their power to perform their obligations to Luxenberg.
The record shows that about a year before the execution of the Grand Union lease, appellee Michaux had turned to one Wallace Agnew for professional assistance in financial transactions involving real estate. Agnew testified that he had sought to improve the financial position of the appellee Michaux and the corporations controlled by him. Agnew was aware that Luxenberg for some years had been Mayfair’s lessee but had no knowledge that the term of his lease had been extended. On the assumption that the lessee had simply held over, Agnew on August 5, 1964 wrote to Luxenberg, notified him that the original leased structure had been ordered demolished, and requested Luxenberg to vacate the premises on or before October 1, 1964. In early September, Agnew with Michaux had attended a conference with Luxenberg’s attorney and a lawyer from Agnew’s firm. Copies of the extension document were distributed among those in attendance, and the status of Luxenberg was thereupon recognized. Agnew promptly wrote a letter under date of September 10, 1964 withdrawing the August 5, 1964 notice to vacate, cancel-ling the request, and giving notice that his “principal does not at this time intend to demolish the existing premises.” Additionally, the letter reaffirmed the Luxenberg lease and informed the appellant that the “lessor under such lease intends to follow the terms required by it to be performed under such lease, as amended.”
The May, 1964 lease to Grand Union in elaborate detail spelled out the respective rights of the appellees as “Landlord” and of Grand Union as “Tenant.” We may note as typical for present purposes:
“The Landlord shall commence construction of the Tenant’s store on or before January 1st, 1965, and if Landlord shall fail to commence construction by said date Tenant may cancel this lease at any time thereafter before such construction shall be commenced.”
“The Tenant agrees that it will provide the Landlord with 60 days advance written notice of any cancellation of this lease pursuant to the provisions of paragraph 2 hereof, and further agrees that if on the first day of December, 1965 the premises are substantially under construction, it will defer exercise of its right of cancellation so long as such construction is continued with diligence and continuity.”
“The tenant presently considers the addition of at least 500 units to the Apartment Development known as Mayfair Mansion Apartments lying adjacent to the Shopping Center essential to its [sic] profitable business operation in the demised premises. It is therefore agreed that unless the Landlord shall on or prior to September 1, 1964, guarantee in writing to the Tenant that it will include an additional 500 units in said Apartment Development prior to the delivery of the demised premises to the Tenant, the Tenant may cancel this lease at any time thereafter prior to October 1, 1964.”
“The Landlord covenants and warrants it has full right and lawful authority to enter into this lease for the full term herein granted and for all extensions herein provided, and that it has a good and marketable title to the premises, free and clear of all occupancies, tenancies, mortgages, liens and other encumbrances except the following: None. ”
The testimony before the trial court disclosed that Grand Union had not can-celled the lease despite its right to do so. Despite the apparent incompatibility between the Grand Union lease and the outstanding lease to Luxenberg, the trial judge observed that the appellees had not yet placed it out of their power to perform, they had not sold the property, whatever rights Luxenberg had still remained in effect, and Mayfair had expressed its intention to continue performance under the Luxenberg lease.
The trial judge concluded — we think, correctly — that the evidence failed to disclose a clear and unequivocal breach of the contract rights of Luxenberg. We go one step farther and say that if replacement facilities shall be constructed within the term of Luxenberg’s lease and if Luxenberg shall elect to meet a bona fide offer to pay a rental equal to that offered by any prospective tenant, Grand Union or other, he will be entitled to the benefit of his agreement. That is as far as his conditional contract can be said to go.
But, the appellant would have us say the appellees had bound themselves, within a time certain, to erect a building for Grand Union. However he was not a party to that contract and had gained no rights under it; indeed, to the contrary, his whole claim stems from his contention that the rights purportedly created in favor of Grand Union were in derogation of his own.
The appellant next argues that we had earlier resolved similar issues in favor of his position in Friedman v. Decatur Corporation, 77 U.S.App.D.C. 326, 135 F.2d 812 (1943). Not so. There the appellant had agreed to buy certain land respecting which the contract was to be voidable if the seller should find it impossible to obtain certain wharfage facilities and the privilege of running a pipeline from the wharf to the premises in question. The agreement of the parties was expressly subject to that condition which, we observe, had been inserted for the benefit of the buyer. He could have waived performance of the condition. The seller could not obtain the benefits of the contract unless it had performed that condition. Such performance, however, might be excused if it should develop that the buyer would have failed to carry out his promise to acquire the premises whether the seller performed the condition or not. Despite efforts by the seller to fulfill the requirements of the condition, the buyer notified the seller that since he had been unable to complete business arrangements with an oil company, he could not and would not perform his part of the contract. The anticipatory breach by the seller was thus excused when the buyer cut off all pending efforts on the párt of the seller to fulfill the condition. The appellant’s reliance upon Friedman is unavailing.
Luxenberg points for support to Burke v. Thomas J. Fisher & Company, 127 F. Supp. 1 (D.D.C.), aff’d, 95 U.S.App.D.C. 85, 219 F.2d 767 (1955). There an anticipatory breach of contract was found where a purchaser refused to perform his contract to buy certain real estate. In the lawsuit which followed, the purchaser contended that the tender of a deed was a condition precedent to his obligation to pay. The trial court found, correctly we concluded, that the condition of tender had been excused since the purchaser had clearly indicated his intention not to perform regardless of the tender.
Other cases cited by the appellant have no applicability. The appellant can not escape the fact that the construction of replacement facilities by the appellees was a condition precedent to the exercise of his option. The appellees, as owners, had simply decided not to fulfill a condition which they were under no legal obligation to meet. Since the owners had incurred no obligation to build, they had incurred no obligation to lease until and unless they built. There was no escalation of the appellant’s rights by virtue of the lease between the appellees and Grand Union.
Affirmed.
. In light of the evidence developed at trial, Gospel Spreading Association, Inc. and L. S. Michaux were joined as parties and aligned with Mayfair, and thereupon were treated as representing a single interest in the realty here involved. All three will hereinafter be referred to as appellees. Sixty per cent of the Mayfair stock is owned by Gospel, and forty per cent is owned by Michaux, who is also president of both corporations.
. The memorandum filed by Judge Walsh appears sub nom Tobriner v. Mayfair Extension, Incorporated, 250 F.Supp. 614 (D.D.C.1966) to ■which reference may be had for details not herein set forth.
. Luxenberg caused its lease as extended to be recorded September 24, 1964. Of. D.C.Code § 45-502 (1961), 31 Stat. 1268, ch. 854, § 500.
. Cf. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953 (1900).
. Factual details are developed in the opinion of the trial court, uM, supra.
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_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.
UNITED STATES of America, Appellee, v. Tito SANTANA-CAMACHO, Defendant, Appellant.
No. 86-1898.
United States Court of Appeals, First Circuit.
Heard Sept. 10, 1987.
Decided Nov. 12, 1987.
Rafael Yulian Pomar, Santurce, P.R., by Appointment of the Court, for defendant, appellant.
Jorge E. Vega-Pacheco, San Juan, P.R., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., and Luis A. Plaza, Asst. U.S. Atty., were on brief, for appel-lee.
Before CAMPBELL, Chief Judge, GARTH, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Third Circuit, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
Appellant Tito Santana-Camacho (“Santana”) was charged and convicted of the offense of transporting within the United States an illegal alien, by means of a motor vehicle, in violation of 8 U.S.C. § 1324(a)(2) (1982). He was sentenced to serve a year in prison and to pay a fine of $1,000. The principal issue on appeal is whether it was plain error for the prosecutor to tell the jury — without record support, and to all appearances, incorrectly — that Santana himself had entered the United States illegally.
I. FACTS
In 1986, when the alleged crime occurred, Santana, a citizen of the Dominican Republic, was legally residing in Puerto Rico. The alien he is charged with illegally transporting was one Jesus Matos-Reynoso (“Matos”), also a citizen of the Dominican Republic.
The government’s case-in-chief was put in principally through three witnesses, whose essential testimony was as follows.
Police officer Mendez-Zayas (“Mendez”) testified that on the morning of May 14, 1986, in San Juan, Puerto Rico, he stopped a car driven by Santana in which Matos was a passenger. The car was going the wrong way on a one-way street. Santana did not produce a valid driver’s license, but he did show his immigration papers to the officer. When Mendez asked Matos if he had an immigration card, Matos replied that he did not have any papers. They were thereupon arrested.
Matos testified that he had entered the United States illegally in a yawl through Aquadilla, Puerto Rico, about two months prior to the arrest. He said he met Santana four years ago in the Dominican Republic and that he had been living at Santana’s house for the last two weeks. On cross-examination he asserted that he had never told Santana of his illegal status in Puerto Rico or of the day of his entry into the United States. While staying at Santana’s house, Matos was paying no rent. He paid only for his food.
Felipe Ferrer, a special agent for the anti-smuggling unit of the Immigration Service in San Juan, testified that on May 14, 1986, Santana and Matos were referred to him by the police. He interviewed both of them. In a sworn statement Matos stated that he was illegally in the United States and that he had entered the United States sometime during February 1986 on a motor boat. Also in a sworn statement, Santana indicated he had entered the United States legally in a motor boat in 1981, that on the date he was arrested he was on his way to work, and that (referring to Matos) he had picked up a person whose name he did not know.
Santana’s defense consisted of his own testimony and that of a character witness. Santana testified that he did not know Ma-tos was illegally in Puerto Rico until they were arrested. He asserted that Matos never told him when and how he had entered the United States. The day of the arrest he and Matos were searching for jobs. Santana admitted that he knew Ma-tos from the Dominican Republic, that Ma-tos had been staying at his house, and that he, Santana, had lied to the immigration agent when he said that he did not know Matos. Santana explained that he had lied because he became afraid after first learning at the time of the arrest that Matos was not legally in Puerto Rico. The character witness, Ana M. Resto, testified that she was a neighbor of Santana, that she had known him for at least two years, and that she was of the impression he was an honest man.
Santana at no time presented a motion for judgment of acquittal under Fed.R. Crim.P. 29.
II. THE PROSECUTOR’S REMARKS
Santana contends on appeal that the prosecutor made two improper and prejudicial remarks in his closing argument to the jury. Emphasizing that Santana must have known of Matos’s illegal entry and status, the prosecutor said,
We submit to you that when you reside with a person for that length of time you talk. Especially a person in a case where the evidence showed that he himself had entered illegally back in 1981, also in a yawl. Can we believe they could not talk? So the real issue is one of credibility.
(Emphasis supplied.) The statement that Santana had himself entered illegally is unsupported in the record and, indeed, contrary to the only evidence on the subject, which was Santana's own testimony that he had entered legally in 1981.
The prosecutor also argued,
Now, Title 8, Section 1324, has been established by the Congress for the specific purpose of protecting citizens of the United States from the very act that the defendant Tito Santana Camacho committed with Jesus Matos Reynoso, to prevent illegal aliens from taking jobs away from people that are here legally.
Santana contends that this argument was unduly inflammatory in a country like Puerto Rico which has a high unemployment rate; also that it reinforced the prejudicial effect of the prosecutor’s earlier mistaken reference to Santana’s own supposed illegal entry in 1981. While this remark standing alone may well have been deemed harmless, particularly in the absence of an objection by Santana, we view it as far more troublesome when considered in combination with the more egregious and incorrect statement regarding Santana’s illegal entry.
The principal issue before us is whether the prosecutor’s error in mischaracterizing defendant’s own entry into the United States as “illegal” amounted to plain error within Fed.R.Crim.P. 52(b). Under Fed.R.Crim.P. 51, a party is expected
at the time the ruling or order of the court is made or sought, [to make] known to the court the action which that party desires the court to take....
At the time the Assistant United States Attorney misrepresented the evidence concerning Santana’s status, Santana’s counsel should have pointed out the mistake to the district court and requested corrective action. Had he done so, the district court would doubtless have cleared up the mistake, and, failing that, redress on appeal would have been easily obtainable. Unfortunately, however, no objection whatever was registered. Where a defect in the trial slips by unchallenged, this court will not normally consider it on appeal. But a narrow exception exists to this otherwise universal rule in Fed.R.Crim.P. 52(b), which reads as follows,
Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
The question here is whether the prosecutor’s remark was so destructive of Santana’s basic right to a fair trial as to constitute plain error. See United States v. Turano, 802 F.2d 10, 12 (1st Cir.1986). In resolving this issue, we begin with the premise that,
The plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.”
United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985) (citing United States v. Frady, 456 U.S. 152, 160, 102 S.Ct. 1584, 1590-91, 71 L.Ed.2d 816 (1982)).
But while plain error is rare, it can occur. Here, we find no fault with the trial judge, who was entitled to assume that the prosecutor would not misstate the evidence and that, if he did, defense counsel would call the misstatement to the court’s attention. Nonetheless, we conclude that the misstatement was so major and so prejudicial that it could have caused a miscarriage of justice. Hence we find plain error and reverse.
To determine whether the prosecutor’s misstatement amounted to plain error, it must be viewed within the context of the entire trial. “[T]he court must consider the probable effect the prosecutor’s [remarks] would have on the jury’s ability to judge the evidence fairly.” United States v. Young, 470 U.S. at 12, 105 S.Ct. at 1045.
In the instant case, the evidence is extremely weak on the essential element of Santana’s knowledge that Matos was an illegal alien who had entered the United States within the last three years. The proof is perhaps even weaker that Santana was transporting Matos “willfully in furtherance of the alien’s violation of the law.” United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976) (emphasis supplied). The government relies for proof of these matters upon the circumstantial evidence that Santana had met the illegal alien in the Dominican Republic several years ago, that since entering Puerto Rico the illegal alien had been staying at Santana’s house, and that they were in the car together searching for jobs when arrested. There was also evidence that Santana had lied to the immigration agent when, after the arrest, he was asked if he knew Matos. As to this, however, Santana offered the explanation that he lied because he had learned for the first time during their arrest of Matos’s illegal status (i.e., when Matos told the officer he was without papers). Matos himself, who was the government’s principal witness, testified that he had never told Santana that he was illegally in the country or when he had entered the country.
Given this record, the prosecutor’s misrepresentation that Santana had himself been an illegal alien in 1981 is likely to have had a major impact upon the jury, causing it to believe that Santana undoubtedly knew of Matos’s illegal status and was willfully aiding him when they were stopped. The assertion that Santana had entered illegally was the sort of official information an Assistant United States Attorney would be presumed to know — hence the jurors could readily have accepted the statement at face value. Once believing that Santana had himself entered illegally, the arguments that Santana did not know that Matos had entered illegally, and that Santana was not knowingly attempting to help an illegal alien, might have seemed unbelievable.
To be sure, the extensive prior contacts between Santana and Matos provided some basis in common sense for suspecting that Santana knew of the latter’s illegal status. Whether, standing alone, such circumstantial evidence would be legally sufficient to have supported a conviction is a matter we need not decide. If sufficient, the proof was barely so. This can be seen by comparing the government’s evidence here and its evidence in other cases where convictions for this particular “transportation” offense have been upheld. See, e.g., Gonzalez-Hernandez, 534 F.2d at 1353 (defendant was paid to transport illegal alien; no dispute as to defendant’s knowledge of illegal status of alien); United States v. Shaddix, 693 F.2d 1135 (5th Cir.1982) (defendant told Hispanic individuals near border to hide in the brush until nighttime when they would be picked up by someone in a car who would honk twice).
Cases like the above may also be compared with others where, notwithstanding evidence somewhat stronger than is present here, the convictions were not sustained. See, e.g., United States v. Tapia, 761 F.2d 1488 (11th Cir.1985); United States v. Moreno, 561 F.2d 1321 (9th Cir.1977). While we need not decide whether in all respects we would agree with the Ninth and Eleventh Circuits in the above two cases, they serve to suggest the fragility of the government’s present case.
Clearly, then, the prosecutor’s misstatement was no mere incidental embellishment to an otherwise powerful case. The prosecutor’s erroneous remark strongly fortified the government’s theory. Without that remark, it is not clear that the jury would have found beyond a reasonable doubt that defendant was guilty.
This court has found plain error when the prosecutor’s statements could have been interpreted as a comment on the failure of the defendant to take the stand, Rodriguez-Sandoval v. United States, 409 F.2d 529 (1st Cir.1969), and when the judge has misstated the law in his charge to the jury, “even though the evidence against the appellant was strong,” United States v. Aitken, 755 F.2d 188, 194 (1st Cir.1985). In other cases where we have not found plain error, the evidence against the defendant was stronger than here. United States v. Mandelbaum, 803 F.2d 42, 46 (1st Cir.1986); United States v. Paradis, 802 F.2d 553, 559-60, 561 (1st Cir.1986); United States v. Cortez, 425 F.2d 453 (1st Cir.1970).
The present case is clearly distinguishable from United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1, where the Supreme Court concluded that the prosecutor’s rebuttal comments were not plain error. The remarks there had been invited by defense counsel’s misconduct during his closing argument. The statement in Young did not suggest that the prosecutor was relying on evidence outside the evidence presented at trial. Id. at 19,15 S.Ct. at 1049. Finally, there was substantial evidence in Young to sustain the conviction:
The overwhelming evidence of respondent’s [guilt] eliminates any lingering doubt that the prosecutor’s remarks unfairly prejudiced the jury’s deliberations or exploited the government’s prestige in the eyes of the jury. Not a single witness supported respondent’s asserted defense ... and several witnesses flatly rejected such propositions.... Under these circumstances, the substantial and virtually uncontradicted evidence of respondent’s willful violation provides an additional indication that the prosecutor’s remarks, when reviewed in context, cannot be said to undermine the fairness of the trial and contribute to a miscarriage of justice.
Id. In the instant case there is an absence of those ameliorating circumstances that were present in Young. Here the prosecutor's remark was not made in response to any improper statement made by defense counsel. The remark lacked any basis in the evidence and, indeed, contradicted the evidence. We conclude that there is indeed a “lingering doubt that the prosecutor’s remarks unfairly prejudiced the jury’s deliberations.” Id.
The judgment of conviction is vacated and the case remanded for further proceedings not inconsistent with this opinion.
. At the time the offense was committed, 8 U.S. C. § 1324(a)(2) read as follows:
(a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
(2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law; ...
any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.
. Knowledge by a defendant that the alien he is transporting was illegally in the United States and that the alien had entered the country within the last three years are elements of the charged crime. See footnote 1, supra; United States v. Gonzalez-Hernandez, 534 F.2d 1353, 1354 (9th Cir.1976).
. In the instant case, since appellant did not raise the issue of sufficiency of the evidence before the district court, it cannot be considered on appeal unless the conviction is "clearly and grossly unjust.” United States v. Lopez, 709 F.2d 742, 746 (1st Cir.1983). See also United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir.1986). Because we have found plain error, we do not have to reach the issue of the sufficiency of the evidence under the "clearly and grossly unjust” standard. Cf. United States v. Tapia, 761 F.2d at 1491-92.
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_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
VITEK, DIRECTOR, DEPARTMENT OF CORRECTIONAL SERVICES, et al. v. JONES et al.
No. 77-888.
Argued April 24, 1978
Decided May 23, 1978
Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, argued the cause for appellants. With him on the brief was Paul L. Douglas, Attorney General.
Thomas A. Wurtz, by appointment of the Court, 435 U. S. 949, argued the cause and filed a brief for appellee Jones.
Evelle J. Younger, Attorney General, Jack B. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and John T. Murphy, Karl S. Mayer, and Thomas P. Dove, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal.
Per Curiam.
This appeal presents a challenge under the Due Process Clause of the Fourteenth Amendment to a state statute which authorizes the transfer of a state prisoner, without his consent, to a state mental hospital upon a finding by a physician or psychologist that the prisoner suffers from a mental disease or defect and that he cannot be given proper treatment within the facility in which he is confined.
Appellee Larry D. Jones was convicted of the crime of robbery and was sentenced to a prison term of three to nine years. In May 1974, he began serving his sentence at the Nebraska Penal and Correctional Complex, a state prison. In January 1975, appellee was transferred to the penitentiary hospital; two days later he was placed in solitary confinement in the prison adjustment center. While there, appellee set his mattress on fire and suffered serious burns. Appellee was transferred by ambulance to the burn unit of a private hospital where he remained for some four months. In April 1975, immediately following his release from the hospital, appellee was transferred to the security unit of the Lincoln Regional Center, a hospital facility owned and operated by the State of Nebraska for the purpose of providing treatment for persons afflicted with emotional and mental disorders.
In advance of his transfer to Lincoln Regional Center, appellee was examined by a psychiatrist as required by Neb. Rev. Stat. § 83-180 (1976). The evidence adduced before the District Court revealed that, when asked by the examining psychiatrist whether or not he wished to be transferred, ap-pellee answered that he did. However, the District Court deemed the transfer to have been involuntary because appellee was offered no means of obtaining independent advice on the subject and because, in the view of the District Court, appellee “may well not have been competent to exercise a free choice.” It is undisputed that, in transferring appellee from a prison facility to a mental institution, the correctional authorities exercised the authority conferred on them by the state statute challenged here.
In April 1976, appellee filed a complaint in the United States District Court for the District of Nebraska seeking to intervene in a civil rights action brought by a state prisoner who, like appellee, had been transferred from the State Penal Complex to Lincoln Regional Center.
The three-judge District Court agreed that due process attached to plaintiffs’ asserted liberty interest and declared § 83-180 (1) unconstitutional as applied. Miller v. Vitek, 437 F. Supp. 569. The District Court also enjoined the transfer of any state prisoner from a penal facility to a mental institution except in compliance with procedures similar to those identified in this Court’s opinions in Morrissey v. Brewer, 408 U. S. 471 (1972), and Wolff v. McDonnell, 418 U. S. 539 (1974). Additional procedures set forth by the District Court require the State to furnish the inmate with effective and timely notice of his rights and, in the case of an indigent inmate, with legal counsel. We noted probable jurisdiction.
On November 17, 1977, the Nebraska Board of Parole granted appellee parole for the purpose of allowing him to receive in-patient psychiatric care at the Veterans Hospital in Danville, Ill. During the course of oral argument in this Court, appellee’s counsel advised the Court that appellee has accepted the parole offered to him and agreed to treatment at the Veterans Hospital. Moreover, according to counsel, appellee is now cooperating with the medical staff assigned to his care and voluntarily taking medication prescribed for him.
In light of these disclosures, the judgment of the United States District Court for the District of Nebraska is hereby vacated, and the case is remanded to the District Court for consideration of the question of mootness.
Vacated and remanded.
Nebraska Rev. Stat. § 83-180 (1976) provides in relevant part:
“[W]hen a physician or psychologist designated by the [Director of Correctional Sevices] finds that a person committed to the [Department of Correctional Services] suffers from a mental disease or defect, the chief executive officer may order such person to be segregated from other persons in the facility. If the physician or psychologist is of the opinion that the person cannot be given proper treatment in that facility, the director may arrange for his transfer for examination, study, and treatment to any medical-correctional facility, or to another institution in the Department of Public Institutions where proper treatment is available. A person who is so transferred shall remain subject to the jurisdiction and custody of the Department of Correctional Services and shall be returned to the department when, prior to the expiration of his sentence, treatment in such facility is no longer necessary.”
This lawsuit was initially brought by a single plaintiff, Charles Miller. On August 18, 1976, plaintiff’s suit was certified as a class action. After a hearing, the action was decertified. Thereafter, William McKinley Hines, William George Foote, and Larry D. Jones were added as individual plaintiffs-intervenors. Hines, who had been returned to state prison and released on parole, did not participate in the proceedings before the District Court, which ordered him dismissed as a plaintiff-intervenor on September 12, 1977. Prior to the entry of the judgment below, Miller and Foote each completed his maximum sentence and received a final discharge. Jones is the sole appellee in this Court.
Miller v. Vitek, 437 F. Supp. 569, 571 n. 3.
434 U. S. 1060 (1978).
The District Court rendered its judgment in this case on October 14, 1977.
Tr. of Oral Arg. 13, 19, 41-44.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
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.
In re W.T. GRANT COMPANY, Bankrupt. David COSOFF and Helen Finkelstein, and Jay Miller and Eileen McGinnis, Appellants, v. Charles G. RODMAN, as Trustee of W.T. Grant Company, Bankrupt, Appellee.
No. 381, Dockets 82-5019, 82-5023.
United States Court of Appeals, Second Circuit.
Argued Nov. 9, 1982.
Decided Jan. 26, 1983.
Bradley R. Brewer, New York City (Brewer & Soeiro, New York City), for appellants Cosoff and Finkelstein.
Stuart A. Jackson, New York City, for appellants Miller and McGinnis.
Harvey R. Miller, New York City (Weil, Gotshal & Manges, New York City), for appellee Rodman as trustee.
James C. Sargent, New York City (Whitman & Ransom, New York City), for intervenor United States Trust Co. of New York.
I. Walton Bader, White Plains, N.Y. (Bader & Bader, White Plains, N.Y.), for intervenors Masse, et al.
FRIENDLY, Circuit Judge:
These appeals arise from the mammoth bankruptcy proceedings of W.T. Grant Co. before Bankruptcy Judge Galgay in the Southern District of New York. Grant initially filed a petition for an arrangement under Chapter XI on October 2, 1975, and was adjudged bankrupt on April 13, 1976. Secured suppliers, holders of senior debentures, bank creditors, general unsecured creditors, and holders of two issues of subordinated debentures filed claims against the bankrupt estate. The present appeals concern the last of a series of compromises and settlements designed to avoid what would necessarily have been extremely protracted litigation with the various claimants. We shall assume familiarity with Judge Galgay’s opinions and will endeavor to state only what is necessary to an understanding of these appeals.
The History of Grant’s Financings
Prior to July, 1973, Grant, which operated a large chain of retail stores, generally satisfied its short-term cash needs by selling commercial paper through a wholly owned subsidiary, W.T. Grant Financial Corporation (Grant Financial); it had relatively small revocable lines of credit at several hundred banks. In the spring of 1973 Grant determined that a portion of the commercial paper outstanding should be converted into long-term debt and approached Morgan Guaranty Trust Co. of New York (Morgan Guaranty) to structure a $100,000,000 five year term loan. On July 5, 1973, Morgan Guaranty arranged such a loan to Grant Financial from eight banks replacing an equivalent amount in their lines of credit to Grant. Among these banks were, in addition to Morgan Guaranty, Chase Manhattan Bank, N.A. (Chase), which was the trustee under an indenture under which $92,507,000 of Grant’s 4/i% unsecured subordinated debentures issued April 15, 1971, were outstanding as of the date of filing under Chapter XI, and First National City Bank, now Citibank, N.A. (Citibank), which was trustee under an indenture under which $834,000 of Grant’s 4% unsecured subordinated debentures issued June 1, 1965, were outstanding as of the date of filing under Chapter XI.
Grant’s financial performance declined during 1973 and in December Moody’s and Standard and Poor’s lowered Grant Financial’s commercial paper ratings from prime 1 to prime 2 and also downgraded Grant’s long-term securities. Grant resorted to borrowing under its lines of credit. On March 5,1974, Moody’s withdrew Grant Financial’s commercial paper rating and further downgraded Grant’s long-term securities. Faced with the need to raise more than $132,000,-000 in order to meet commercial paper maturities in the next week, Grant asked the eight banks to reestablish their lines of credit. They did this in proportion to their prior exposure, with the result that their loans and advances to Grant Financial shortly reached $415,000,000. Even this borrowing was not enough; in August, 1974, Morgan Guaranty, Chase and Citibank each advanced an additional $5,000,000 to Grant (Secured Demand Loans) secured by an assignment of certain accounts receivable. Later in August, 1974, Grant Financial, Grant as guarantor, and eleven bank lenders entered into an Interim Loan and Guaranty Agreement wherein Grant Financial became indebted to the eleven banks in the aggregate amount of $44,000,000 by assuming Grant’s obligation to repay the $15,-000,000 of Secured Demand Loans just described and incurring New Loans of $29,-000,000, all such loans being guaranteed by Grant and secured under an Interim Security Agreement dated as of August 21, 1974, by accounts receivable arising out of the sale of goods at designated stores. This brought the total short-term and long-term loans from Grant’s 12 major bank lenders to approximately $517,000,000.
The Interim Loan and Guaranty Agreement was shortly succeeded by a Loan and Guaranty Agreement dated as of September 16, 1974, which became effective October 8, 1974, less than a year before Grant filed under Chapter XI. The parties were Grant Financial, Grant as guarantor, and 143 banks. The maturity of all outstanding short-term unsecured loans and the $44,-000,000 of secured loans under the Interim Agreement was extended through June 2, 1975, and the banks agreed to increase their loans to $600,000,000. The obligations of Grant Financial were to be guaranteed by Grant. An Initial Security agreement dated September 16, 1974, secured the $600,-000,000 total of outstanding short-term loans and future commitments under the Loan and Guaranty Agreement and the $100,000,000 long-term notes issued under the Term Loan Agreement of July, 1973. On the date when the Loan and Guaranty Agreement became effective, the banks advanced an additional $66,587,500, thereby reaching the $600,000,000 in loans due June 2, 1975, contemplated by the agreement, plus the $100,000,000 represented by the July, 1973, Term Loan Agreement. As of April 1, 1975, Grant, Grant Financial and Morgan Guaranty entered into a Loan Extension Agreement actually executed June 2, 1975, within four months of the filing of Grant’s Chapter XI petition. This provided for paying off a debt of $56,931,665.59 to 116 banks whose individual loans to Grant ranged from $50,000 to $5,000,000 and the extension to March 31,1976, of outstanding short-term loans in the principal amount of $540,916,978 made by the other banks.
Somewhat earlier Grant had been obliged, in order to induce its largest vendors and suppliers to continue providing it with credit, to enter into an Inventory Security Agreement dated as of May 15,1975, wherein Grant gave a lien on designated store inventories to specified vendors and suppliers. Under the Loan and Guaranty Agreement, the bank claimants were to receive a lien on inventory junior to that of the suppliers and the senior debenture-holders.
The final transaction was an Amended Loan Extension Agreement entered into as of August 6, 1975, which became effective on September 15, 1975. This further extended the maturity of the $540,916,978 of short-term bank loans to July 30,1976; subordinated $300,000,000 of that debt to certain trade obligations (the “Trade Subordination Agreement”); and subordinated Grant Financial’s loans of $819,887,663 to the banks’ total claim of $640,916,978 (the “Intercorporate Subordination Agreement”).
The Proceedings in the Bankruptcy Court and the District Court
After Grant had been ordered into liquidation, the banks and Charles G. Rodman, as Trustee, asserted a multitude of claims against each other in an adversary proceeding, the details of which are described in Judge Galgay’s opinion, 4 Bankr.Ct. Dec. at 601-02. The Trustee conducted an elaborate investigation into the affairs of Grant under Bankruptcy Rule 205(a). This encompassed production of the books, records and other documents of Grant, and examination of its remaining and former officers, directors and employees. Before any extensive discovery by the banks, settlement negotiations were instituted. These resulted in an agreement which, in addition to settling the claims of the banks, encompassed what Judge Galgay termed a “global settlement”, i.e., a “framework for the further administration of the bankrupt estate and the satisfaction of claims filed against such estate.” 4 Bankr.Ct.Dec. at 602. So far as here relevant, the settlement provided that the bank claimants were to receive an initial cash distribution of $165,700,000, or approximately 25% of their allowed claims. More was to be paid when and if funds became available. The Trustee agreed not to sue the 116 banks whose loans of $56,931,665.59 were paid in June, 1975. Finally, the agreement created a fund of $95,378,373, the full amount of the claims of subordinated debentureholders, pending resolution of their dispute with the bank claimants as to whether the subordination clauses of their indentures should be given effect so as to subordinate the debenture-holders’s claims to the bank claims. The Bankruptcy Judge approved the banks’ settlement on July 20,1978, finding that “[t]he Trustee will have achieved a result for the estate which approximates, and may exceed, the results which are likely to be achieved by the continued prosecution of his defenses in the Adversary Proceeding” which the bank claimants had initiated, 4 Bankr.Ct.Dec. at 609. There was no appeal of this “global settlement” to the district court.
Having thus provided the necessary framework, the Trustee, the bank claimants, United States Trust Company (U.S. Trust) as indenture trustee replacing Chase under the Indenture for the 4/4% Subordinated Debentures, and representatives of these debentureholders entered into negotiations for the settlement of the latter’s claims. The rights of the debentureholders depended on the interpretation and application of a clause in their indentures subordinating their claims to “Senior Indebtedness” of Grant. The Indenture under which the 4%% Debentures were issued defined this as stated in the margin; the Indenture securing the small amount of outstanding 4% Debentures was to the same effect. If the bank claims were and remained enforceable as Senior Indebtedness to which the debentureholders were subordinated, the latter would receive nothing. However, U.S. Trust alleged that for a number of reasons the conduct of the banks might require that the contractual subordination provisions be disregarded and even that the subordinated debentureholders be accorded a status prior to that of the banks. These reasons, stated in detail in Judge Galgay’s opinion approving the settlement, 4 B.R. at 60-61, were as follows:
(a) At the time of the Initial Security Agreement of September 16, 1974, the bank claimants knew or had reasonable cause to believe that Grant was insolvent and that the granting of security interests would discourage further extensions of trade credit to Grant and substantially reduce the flow of merchandise into Grant stores, thereby impairing the prospects for a successful reorganization of Grant.
(b) By forcing Grant into the Inventory Security Agreement and Trade Subordination Agreement the bank claimants increased the amount of Senior Indebtedness to which the junior debentureholders were subordinated.
(c) In the summer of 1974, the bank claimants directed Grant not to proceed with a proposed sale of $100,000,000 of customer accounts receivable to Beneficial Finance Corporation and the use of some undetermined portion of the proceeds to purchase 43/4% debentures at 25 cents on the dollar.
(d) The bank claimants used their position of control over Grant’s management to prevent Grant from promptly seeking relief under the Bankruptcy Act, feeding it just enough money to keep its head above water while strengthening their security position, allowing the passage of the four months period for avoiding preferences under § 60a and hoping to allow the passage of the one year provision of § 67d(2) for the avoidance of liens and fraudulent transfers.
The bank claimants made a variety of responses. They denied having had any fiduciary relationship to Grant, asserted that they had made loans in the belief fostered by Grant’s management that Grant remained viable, contended that Grant’s management itself had abandoned the proposed sale of accounts receivable, and denied that they had prevented Grant from seeking rehabilitation under the Bankruptcy Act. They asserted, moreover, that as to many of U.S. Trust’s claims, the remedy, even if the claim were made out, would be invalidation of the banks’ security interests rather than subordination to the debentureholders. U.S. Trust also raised claims of conflict of interest and derelictions of duty against Chase, its predecessor trustee, to which Chase answered.
The settlement originally provided for the payment of 14% of the claims of the accepting subordinated debentureholders. All rights of non-acceptors were preserved, and neither the offer nor the bank settlement agreement was to have any effect in any proceeding brought by them. The indenture trustees, U.S. Trust and Citibank, were, however, to be released from all further obligations to enforce the rights of debentureholders under their respective indentures.
At a hearing before Judge Galgay objections were made by eleven debentureholders, led by Victor Kurtz as chairman of an “Ad Hoc Protective Committee of Holders of 43/4% Debentures”, see note 5, supra, and represented by I. Walton Bader. A group of Institutional Investors also raised objections at the outset but have played no subsequent role in the case. The Kurtz objectors asserted principally that the Trustee had failed to make a presentation of the facts and law adequate to support approval of the settlement, that the bank claims should be equitably subordinated to the debentures because of the control and dominion over Grant allegedly exercised by the banks, and that the Trustee, U.S. Trust and their respective counsel are subject to conflicts of interest which require them to be disqualified. Acknowledging the task imposed by Protective Committee for Independent Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968), Judge Galgay, after 27 pages of discussion, 4 B.R. at 57-84, concluded that the original settlement represented a fair compromise, taking into account the strengths and weaknesses of the claims of both sides and the delay and expense incident to litigation, and approved it on February 20,1980.
Timely appeals were taken to the District Court (Conner, J.) by Kurtz and nine other debentureholders represented by Bader and Morton Robson (No. 80 — Civ. 1857), and by debentureholder Levy and three others represented by Bader and Bradley R. Brewer. The latter did not take an appeal on behalf of his present clients, David Cosoff and Helen Finkelstein, who were not named objectants but had asked Mr. Brewer to represent them at the time of the hearings before the Bankruptcy Judge. Before the appeals could be heard, negotiations looking toward an improvement of the offer were begun. Judge Conner stayed consideration of the appeals and allowed negotiations to go forward under the Bankruptcy Judge’s supervision. See In re W.T. Grant Co., 13 B.R. 1001, 1002 (S.D.N.Y.1981). These resulted in an amended offer. The amount payable to the debentureholders was raised from a floor of 14 cents on the dollar to one of 19 cents on the dollar. Interest on the reserve fund calculated from the date of approval by the bankruptcy judge would run for the benefit of the debentureholders. Solicitation of acceptances could start immediately. As soon as the tendering debentureholders were paid, the banks could also draw down the remainder of the $95,378,373 reserve fund set aside under the bank settlement agreement.
A conference on certain details was held in Judge Galgay’s chambers on April 16, 1981. The appearance list shows Robson as appearing for “Kurtz et al.” and Bader for “Bondholders”. There was much discussion of the withdrawal of the appeals from Judge Galgay’s order of February 20, 1980. Robson and Bader agreed that, subject to certain contingencies later worked out, they would withdraw their appeals with prejudice. Bader announced that although he had brought Brewer into the case and Brewer had signed his name on the briefs, Brewer was not the attorney for the Levy appellants, who were Bader’s clients, and had not signed the notice of appeal. Robson’s and Bader’s stipulations withdrawing appeals from the February 20, 1980, order with prejudice and without costs were signed and so ordered.
In the further proceedings before Judge Galgay relating to the new settlement offer, objections had to be submitted in writing by June 12, with a hearing to be held on June 16. Brewer filed no written objections by June 12 because no one had authorized him to do so. A day later appellant Cosoff retained him to oppose the settlement. At the hearing on June 16 Judge Galgay gave him time to argue; Brewer there objected only to an alleged inadequacy of notice and to the provisions conceming attorneys’ fees. By order dated June 23, 1981, Judge Galgay approved the amended offer, which has now been accepted by some 80% of the debentureholders. On July 1, 1981, Cosoff and Finkelstein, represented by Brewer, and Miller and McGinnis, originally represented by Douglas F. Eaton and now by Stuart E. Jackson, filed notices of appeal, which on this occasion came before District Judge Duffy. The grounds of appeal were largely those that had been argued before Judge Galgay at the hearing on the first settlement offer. On March 15, 1982, Judge Duffy affirmed the order of the bankruptcy court, 20 B.R. 186 (S.D.N.Y.1982), primarily on the ground that the dismissal of the appeals from the order of February 20, 1980, rendered that order res judicata. The instant appeals are from Judge Duffy’s order.
Discussion
Although the trustee in bankruptcy has not raised the point and U.S. Trust Company has done so only feebly, we begin by noting some concern whether appellants have standing to appeal in light of the fact that the settlement leaves them free to pursue their remedies. We see nothing in the argument of their counsel that they are entitled to represent accepting debenture-holders since a rejection of the settlement would necessarily lead to a still further improvement in the offer. There can be no such assurance. Although the banks indeed moved rather quickly from 14 cents to 19 cents, there must be a point at which the banks would prefer to litigate rather than give up more in settlement, and no one knows but the banks and their counsel where that is. Beyond this there is no proof that accepting debentureholders have authorized appellants to appear for them. Appellants’ argument with respect to standing must be rather that in a case of this sort'the right of an individual debenture-holder or even of a considerable group of such holders to assert their claims against the embattled forces of ten of the country’s largest banks, once deprived of the resources afforded in the past by the bankruptcy trustee and the indenture trustee, is more fiction than fact. With claims of 80% of the debentures settled, the threat to the banks by a few holdouts is not substantial. Bringing the bankruptcy trustee, or the indenture trustee, or both, back to the negotiating table or to court is the only realistic recourse to preserve an opportunity for debentureholders who have not yet accepted to achieve more. The situation is comparable to that of court-approved settlements of class actions, in which “even where class members had the right to exclude themselves from the class, they may appeal from an order approving a settlement which they deem unsatisfactory,” 3B Moore, Federal Practice 123.80[5] (2d ed. 1982), lest small claimants “be faced with equally unpalatable alternatives — accept either nothing at all or a possibly unfair settlement,” Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 33 (3 Cir.1971).
We have little doubt as to the correctness of Judge Duffy’s observations about res judicata in the usual case or even in most cases of the approval of settlements in bankruptcy. An appeal by one creditor will not save the situation for another if the first withdraws his appeal — if for no other reason than that the time for the other to take an appeal will generally have expired. See 9 Moore, Federal Practice 1204.11[4] (2d ed. 1982). Here the latter obstacle does not exist. The operative order was Judge Galgay’s order of June 23, 1981, approving the revised settlement and the Cosoff-Finkelstein and Miller-McGinnis appeals were timely. By the time the Kurtz and Levy appeals from the February 20, 1980, order were withdrawn the amended offer had been made public and, if the appeals had not been formally withdrawn, Judge Conner would surely have found some way of getting rid of them rather than devote his time to hearing appeals from an order that was about to be superseded. Apparently the reason why withdrawal of the appeals was sought was to permit speedy dissemination of the new offer without having to await the district court’s decision as to the superseded offer, see 20 B.R. at 188; that purpose was accomplished. We see no indication that anyone thought at the time that the withdrawal of the appeals from the February 20, 1980, order with prejudice would deprive objectors to the new offer of a right to appeal on the merits if Judge Galgay were to approve this. Beyond all this, policy considerations weigh against a rigid application of res judicata when such serious attacks have been made upon the bankruptcy trustee and his counsel, the present and former indenture trustees for the 4%% debentures, and the bankruptcy judge. We therefore proceed to Judge Duffy’s alternative ground of decision, on which he did not elaborate, that the appeals are lacking in merit. 20 B.R. at 190. While we could remand the case to him to perform the task of a detailed analysis of the settlement and ordinarily would do so, nearly three years have elapsed since the initial approval of the settlement, and a remand and subsequent appeal would doubtless add nearly another year.
In undertaking an examination of the settlement, we emphasize that this responsibility of the bankruptcy judge, and ours upon review, is not to decide the numerous questions of law and fact raised by appellants but rather to canvass the issues and see whether the settlement “fall[s] below the lowest point in the range of reasonableness”, Newman v. Stein, 464 F.2d 689, 693 (2 Cir.), cert. denied sub nom. Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972). We shall not attempt to deal with every argument advanced by appellants but will concentrate on what seem the most nearly persuasive.
We start with appellants’ argument that, quite apart from the banks’ conduct, part or all of the banks’ claims are not “Senior Indebtedness”, see note 6, supra, to which alone the claims of debentureholders are subordinated. We can pass over the frivolous argument that the language does not cover further borrowings, to which Judge Galgay gave the treatment it deserved, 4 B.R. at 70-72. Appellants next argue that until Grant’s guaranty of August 21, 1974, the banks’ claims did not qualify as Senior Indebtedness of Grant since their loans were not to Grant but to Grant Financial. Judge Galgay thought a sufficient answer to be that Grant’s indebtedness to Grant Financial was evidenced at the time of the filing of the Chapter XI petition by an Intercorporate Demand Note in the amount of $819,887,663, more than the amount of the banks’ loans to Grant Financial, and that this would qualify as Senior Indebtedness if the corporate entities are respected; if they are not, as well might be proper, the loans to Grant Financial, all evidenced by notes, would qualify even more directly. Beyond this, the $15,-000,000 Secured Demand Loans of August 1974 were originally made directly to Grant, and the $44,000,000 loaned under the Interim Loan and Guaranty Agreement of August 21, 1974, was guaranteed by Grant. Finally, under the Loan and Guaranty Agreement all loans by Grant Financial were guaranteed by Grant. While this did not become effective until October 8, 1974, which fell 6 days short of a year of the Chapter XI petition, there is no showing that the trustee could have established lack of fair consideration for the guaranty under § 67(d). The legal standard in a situation such as this, which is governed by § 67(d)(1)(e) of the Bankruptcy Act, is whether “the economic benefit ... that accrued to [the] bankrupt as a result of the third person’s indebtedness” was “ ‘disproportionately small’ when compared to the size of the security that that bankrupt gave and the obligations that it incurred,” Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 993 (2 Cir.1981). See also Klein v. Tabatchnick, 610 F.2d 1043, 1047 (2 Cir. 1979). Through its subsidiary, Grant received the full benefit of the extended maturity of some $490,000,000 in short-term loans and additional loans up to the total amount of $600,000,000 in return for its guaranty and for security interests, see note 4, supra, estimated by the Bankruptcy Judge to amount to $288,000,000, 4 Bankr. Ct.Dec. at 606. We thus conclude that while the subordinated debentureholders have some arguments that the larger part of the bank debt would not qualify as Senior Indebtedness because the loans initially were made to Grant Financial rather than to Grant, these did not have much chance of prevailing.
Appellants contend that, however things might otherwise stand, the banks are estopped from claiming that Grant’s indebtedness to Grant Financial constituted Senior Indebtedness because the prospectus under which the 4%% Debentures were issued showed Senior Indebtedness of only $28,-775,000 whereas Grant then owed Grant Financial $246,420,216. The Bankruptcy Judge accepted the Trustee’s answer that where there is a conflict between a prospectus and the language of an indenture, the latter controls, citing In re Discon Corp., 346 F.Supp. 839, 844 (S.D.Fla.1971). Appellants’ argument, however, is not really one of construction; they say that even if the words are sufficient, Grant, allegedly with the banks’ knowledge, acted in such a way as to make it inequitable for the banks to rely on the words. Yet even if this were upheld — and we find no proof of the banks’ complicity in Grant’s prospectus, the point remains that the prospectus goes on to define Senior Indebtedness as, inter alia, “indebtedness ... for money borrowed from or guaranteed to persons, firms or corporations evidenced by notes or similar obligations” (emphasis supplied). Grant’s fresh guaranty of the indebtedness of Grant Financial to the banks in 1975 would itself therefore qualify as Senior Indebtedness even if some principle of estoppel were to prevent the banks from claiming that the unguaranteed intercorporate loans from Grant Financial would not have done so in 1971.
Once it is concluded that there was a strong probability that all of the bank debt would be deemed Senior Indebtedness and a certainty that some of it would be, appellants’ other claims lose much of their force. It is true, as appellants urge, that the contractual subordination of the debentures to the bank debt would not prevent the bankruptcy court, as a court of equity, from placing the debentures on a plane of equality with or even, although this is harder to envision, see note 7, supra, of superiority to all or part of the Senior Indebtedness if the banks had engaged in inequitable conduct. However, what appellants disregard is that in judging the equity of the banks’ conduct their position as creditors prima facie senior to the debenture-holders must be taken into account. We see no reason to quarrel with the substance of Judge Galgay’s summary of the law of equitable subordination, 4 B.R. at 74-75, although every judge would probably state his own version differently. We entirely agree with his conclusion that “[a] creditor is under no fiduciary obligation to its debtor or to other creditors of the debtor in the collection of its claim”, 4 B.R. at 75, and cases there cited. See Weinberger v. Ken drick, 698 F.2d 61 at 78 (2 Cir.1982). The permissible parameters of a creditor’s efforts to seek collection from a debtor are generally those with respect to voidable preferences and fraudulent conveyances proscribed by the Bankruptcy Act; apart from these there is generally no objection to a creditor’s using his bargaining position, including his ability to refuse to make further loans needed by the debtor, to improve the status of his existing claims.
Returning to the four principal points raised by objectors, see p. 605, supra, we thus think the bankruptcy judge was warranted in giving relatively little weight to those labeled as (a) and (b). The premise of both arguments is that sometime between September of 1974 and May of 1975 the banks knew or had reasonable grounds to believe that Grant was insolvent. Although the Trustee had alleged this in his answer to the banks’ claims, we have been cited to no evidence that would support this. To the contrary there was much testimony that Grant continued showing a substantial net worth and that the banks considered it viable almost to the end.
Taking up next the objection lettered (d), the gravamen of this charge is that Grant management, apparently in the summer of 1974, contemplated taking action to place Grant in a Chapter XI proceeding, which might have enabled Grant to survive as a reduced operation with lower administrative expenses, but that the banks prevented this, making specious explanations but acting in reality to improve their preferred position. For this appellants cited passages from two depositions neither of which supports the contention they advance. In the first of appellants’ references, John P. Schroeder, Morgan Guaranty’s officer in charge of the Grant credit, merely agreed with questions suggesting that in the late summer of 1974 the banks wished “to recoup the most amount of money as possible on the Grant loans”, an understandable and permissible desire, and that for this reason they “did not opt for liquidation at that time”. In the second passage cited, Robert Dannenbaum of the Bank of New York stated that at some unspecified time the banks would have liked an “unofficial reorganization program”, by which he meant not a Chapter XI proceeding but rather nothing more than “general monitoring of the Company’s affairs by the banks”. No suggestion is found in any passage of these witnesses’ testimony reproduced by appellants that Grant itself actively contemplated undergoing voluntary liquidation or reorganization under the Bankruptcy Act in the summer of 1974. We also note that after July, 1974, the banks increased their loans by $44,000,000 in August, 1974, and by another $66,587,500 in October, 1974, and on September 15, 1975, subordinated $300,000,000 of their debt to trade obligations. While a sinister interpretation is possible, this is not demanded; considering that the fresh money provided by the banks after July, 1974, amounted to some $226,000,000 as against $95,378,373 principal amount of the debentures, the banks would have been paying a rather high price to obtain whatever legal advantages the various arrangements of July, 1974, through September, 1975, would yield in the event of Grant’s invoking the Bankruptcy Act.
With respect to objection (d), the Bankruptcy Judge was warranted in attaching little importance to general statements by Grant officials that the banks were “running” Grant. There is no doubt that, at least from March of 1974, the banks kept careful watch on what was going on at Grant; they would have been derelict in their duty to their own creditors and stockholders if they had not. It is not uncommon in such situations for officers whose companies have been brought to the verge of disaster to think that they still have better answers than do the outsiders. In order to establish their claims the appellants must show not simply that the banks proffered advice to Grant that was unpalatable to management, even advice gloved with an implicit threat that, unless it were taken, further loans would not be forthcoming. They must show at least that the banks acted solely for their own benefit, taking into account their reasonable belief that their claims constituted Senior Indebtedness vis-a-vis the debentureholders, and adversely to the interest of others.
The allegation most discussed by appellants is that lettered (c). With respect to this the record, along with materials submitted in support of and in response to the petition for rehearing in Weinberger v. Kendrick, supra, enable us to piece out the story. Harry Pierson, the acting president of Grant and Robert Luckett, the controller, made a report to a meeting of the Grant board of directors in June of 1974 proposing a transaction wherein $100,000,000 of customer accounts receivable would be sold to Beneficial Finance Company (Beneficial) at a discount of up to 27% and some undetermined portion of the proceeds would be used to purchase on the market 4%% subordinated debentures which were then selling at about 25 cents on the dollar. Pierson reported that two of the major banks, Morgan Guaranty and Chase, were opposed to the transaction until some time after the completion of the proposed bank loan commitment, presumably the Loan and Guaranty Agreement executed on October 8, 1974. Their reasons were that proceeds of one of Grant’s most valuable assets would be used to pay junior debt and that trade creditors would be upset. According to Luckett, Pierson had nevertheless determined to sign the contract with Beneficial and apparently persisted in that intention after a meeting at Morgan Guaranty where the banks’ opposition was strongly conveyed. However, when Grant’s attorneys received the documents from Beneficial, they found, as often happens in negotiations of this sort, that the provisions were distinctly more onerous than the Grant officers had supposed. For example, Beneficial reserved the right to cull the accounts tendered, would make no payment until 30 days elapsed, and could put back to Grant any accounts that it found difficult to collect. These and numerous other snags in the draft agreement led Charles A. Doyle, then an attorney in Grant’s Legal Department, to report to Robert Kelly, his superior, that “it would be legally unwise and unsound to execute any of these agreements in their present form.” This view was shared by Kelly, as well as by John Sundman, Grant’s new Financial Vice President and its closest link with the
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_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
BUTTRAM v. GRAY COUNTY, TEX., et al.
No. 6660.
Circuit Court of Appeals, Fifth Circuit.
Dec. 8, 1932.
Wales H. Madden, of Amarillo, Tex., for appellant.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
WALKER, Circuit Judge.
This is an appeal from a decree dismissing a bill in equity filed by the appellant against appellees, Gray county, Tex., and officials of that county, which sought an injunction restraining and enjoining the enforcement of the collection of taxes for the years 1929 and 1930 assessed by that county against the appellant as the owner of the mineral interest described in an instrument dated February 7, 1928, whereby J. B. Bowers and his wife, Lizzie Bowers, “subject to the exceptions and reservations hereinafter contained,” granted, bargained, sold, conveyed, sot over, assigned, and delivered unto appellant “an undivided one-eighth (%) interest in and. to all the oil, gas, and other minerals in, under and that may be produced from” described lands in said Gray county, containing 3,320 acres, “together with the right of ingress and egress at all times, to, from and upon said lands for the purpose of mining, drilling, exploring and developing said lands for oil, gas and other minerals and removing tho same therefrom.” That instrument contained tho following provisions:
“Said lands being now under oil and gas lease, or leases, as the same may have been originally executed by the grantors herein, and as the same may be shown of record in the Deed Records of Gray County, Texas.
“It is understood and agreed that this sale is made subject to any and all of such leases as the same may be shown of record, but covers and includes the equal undivided one-eighth of all of the oil and gas royalty, gas rental, or royalty of any kind due and to become due under the terns of said leases;
“It is agreed and understood that the equal one-eighth part of the money rentals which may bo paid to extend the term, within which a well may be begun under the terms of any of said, leases is to be paid to the said Frank Buttram, and in the event that the above described leases, or any one or more of them for any reason becomes cancelled or forfeited, then and in that event the said Frank Buttram shall own the same undivided one-eighth interest in any down or bonus money that may bo paid for a new oil and gas lease on said lands described in such canceled or forfeited lease, and same undivided one-eighth interest in all future rentals that may be paid on any of said lands for oil, gas and mineral privileges.
“This sale is made for and in consideration of the sum of Ten Dollars ($10.00) cash in hand paid, the receipt of which is hereby acknowledged, and of the other considerations, payments and reservations as hereinafter set out. In addition to the cash consideration above stipulated, and paid to the grantors heroin, the said grantors here now expressly except and reserve to themselves from such conveyance all of the oil, gas and casinghead gas produced, saved and marketed from the interest in the foregoing lands above described, until the grantors heroin shall have been paid and shall have received from such source the sum of Three Hundred Fifty Thousand ($350,000.00) .Dollars, and all of sueh oil, gas and minerals in,-under and that may be produced from the interest in the lands above particularly described shall belong to and be the absolute property of the grantors herein until they shall have received sueh total sum of $350,000.00 from sueh oil, gas and casing-head gas and other minerals when, as and if the same are so produced, saved and marketed.
“It is understood that the grantors herein shall likewise receive any rentals that may be paid under the terms of any existing leases or any future leases that may be made on and covering any part of said lands that would otherwise be the property of the grantee herein, and shall likewise receive any and all down or bonus monies that may be paid for any future leases that may be granted on and covering said lands, or any part thereof to which the grantee herein would othererwise be entitled, and that any such money shall be applied as a credit to the total sum of $350,000.00 herein provided to be paid to the grantors herein and that when such total sum of $350,000.00 shall so be paid to the grantors herein from either of the above sources, then this conveyance shall become absolute and any and all other interests in said lands herein conveyed shall become absolutely the property of the grantee herein, free and clear of any liens, incumbrances or reservations, by reason of the exceptions and reservations-herein contained.
“To have and to hold the above described property, together with all and singular the' rights and appurtenances thereto in anywise .'belonging, unto the said Frank But-train,' his heirs and assigns forever, and. we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend..all and singular the property and property;'mghts herein conveyed unto the said Frank Butt'ram, his heirs and assigns forever, against every 'person whomsoever lawfully claiming' or to claim the same or any part thereof, but subject to the provisions and reservations of .this contract, as herein set out.” ,
It was stipulated by the parties that of the $350,000 to be paid under an above set out provision approximately $153,000 had been paid. The terms of the above-mentioned instrument do not indicate that the transaction it evidenced was connected with a sale by the grantors in that instrument of any other interest in the land described; but evidence disclosed that by a written contract 'dated February 6, 1928, those grantors contracted to sell and convey to appellant and others an undivided one-half interest in all the oil, gas, minerals, and mineral rights in the same lands, it being provided that one-half of sueh interest, being an undivided one-fourth interest in sueh oil, etc., was to be sold and conveyed for the consideration of $250,000 in cash, and $25,000 in cash payable on or before February 1, 1929; and evidence also showed that by a deed of the same date as that of the first above-mentioned instrument the grantors therein conveyed to the appellant an undivided one-eighth interest in all oil, g’as, and oilier minerals in the above-described lands, that deed containing an acknowledgment by the grantors of their receipt of the consideration for the interest thereby conveyed. It appeared that one-half of the mineral interest disposed of by those grantors was paid for, mostly in cash. It also appeared that under the terms of the sale evidenced by the first above-mentioned instrument, in the event of the mineral interest which was the subject of that sale producing or yielding the amount stipulated to be paid to the vendors from that source, they would get for that interest substantially more than the price for which they sold to the appellant another like mineral interest in the same lands. It was stipulated by the parties that for the fiscal tax years of 1929i and 1930 Gray county levied and assessed taxes against all the mineral interests mentioned in said contract, and that no controversy exists with respect to the taxes against sueh mineral interests except as to the interest described in the first above-mentioned instrument. The instrument hereinafter referred to is the one first above mentioned.
For the appellant it was contended that the interest in the described land acquired by him under the instrument referred to was not such a one as was subject to be taxed.
Under the Constitution and statutes of Texas all property, real, personal, or mixed, except such as is expressly exempted, is subject to taxation. Constitution of Texas, .Art. 8, § 11; Revised Civil Statutes of Texas (1925) art. 7145. “Real propei’ty for the purpose of taxation, shall be (Jonstrued to include the land itself, * * *. and all the rights and privileges belonging or in any wise appertaining thereto, and all mines, minerals, quarries and fossils in and under the same.” Revised Civil Statutes of Texas (1925) art. 7146. A conveyance of an undivided interest in and to all the oil, gas, and other minerals in, under, or that may be produced from described land, conveys an interest in realty which is subject to taxation in the hands of the grantee separate from the interest m such, land retained by the grantor. Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989.
It is plain that the above referred to instrument conveyed to the grantee, the appellant, a taxable interest in the described land, unless it was deprived of that effect by the exceptions and reservations therein contained. What the grantors excepted and reserved to themselves “until the grantors herein shall have been paid and shall have ree ceived from such source the sum of three hundred and fifty thousand ($350,000.00) Dollars,” was “all of the oil, gas and casing-head gas produced, saved and marketed” from the described interest, any rentals that may be paid under the terms of a,ny existing or future leases covering any part of the described lands, and any and all down or bonus moneys that may be paid for any future leases that may be granted on and covering said lands, or any part thereof. Those exceptions and reservations fell short of covering the entire interest which was conveyed to the appellant by the instrument. Substantial proprietory rights covered by Hie conveyance to the appellant were not within the exceptions and reservations. His right of ingress and ogress at all times to, from, and upon the described lands for the purpose of mining, drilling, exploring, and developiaig -said lands for oil, gas, and other minerals and removing the same therefrom, was not affected; any limitation or restriction to which the exercise of that right was subject at and after the date of the execution of the conveyance being the result, not of any exception or reservation made in favor of the grantors, but of previously granted oil and gas leases covering described lands.
The right of the grantee to- make new leases in the event of the termination, by cancellation, forfeiture, or otherwise, of those in force at the time the conveyance was executed, was not suspended while the whole or any part of the agreed price remained unpaid. But the existence of such rights in the grantee not covered by exceptions and reservations in favor of the grantors was not necessary to make the interest acquired by the grantee a taxable one. Texas decisions are to the effect that upon a sale and conveyance of land or an interest therein the subject of the sale becomes the property of the vendee for purposes of taxation, though the sale bo on credit and title is retained in the vendor until the agreed price is paid. Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S. W. 296, 29 A. L. R. 607; Harvey v. Provident Inv. Co. (Tex. Civ. App.) 156 S. W. 1127; Taber v. State, 38 Tex. Civ. App. 235, 85 S. W. 835.
It is not a-n uncommon incident of a sale by the terms of which the agreed price, in whole or in part, is not presently payable, for the seller, during a considerable period after the sale is consummated, to he entitled to be paid on, the price as much as, -or more than, the thing sold yields or produces during that period. As between the buyer and others than the seller, the buyer is not kept from being the owner of the thing sold by the seller’s retention of the right to receive what that thing yields or produces until there shall be realized from that source what is owing on the agreed price.
Contentions in behalf of the appellant that the instrument in question conferred on him a mere option to acquire the described interest, or that under that instrument the acquisition by him of a taxable interest in the described land was dependent on the performance or happening of a condition precedent, the payment in full of the agreed price, are not sustainable. That instrument had the effect of making the stated undivided one-eighth interest the property of the appellant for purposes of taxation, though the grantors retained the right to get what that interest might produce or yield until it amounted to $350,000. The right retained by the vendors was a means provided for bringing about the payment of the stipulated price of the interest sold and conveyed; the vendee, the appellant, not being personally obligated to pay that price. The appellant had title against every one except his vendors, and his interest was a taxable one. Harvey v. Provident Inv. C'o., supra. The court did not err in denying the injunctive relief prayed for.
The decree is affirmed.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Clifford Keith MERRILL, Appellant.
No. 72-1707.
United States Court of Appeals, Eighth Circuit.
Submitted Jeme 12, 1973.
Decided July 20, 1973.
Certiorari Denied Dec. 3, 1973.
See 94 S.Ct. 594.
Donald R. Shultz, Rapid City, S. D., for appellant.
William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.
Before Mr. Justice CLARK, and HEANEY and BRIGHT, Circuit Judges.
Associate Justice Tom O. Clark, United States Supreme Court, Retired, is sitting by designation.
PER CURIAM:
Clifford Keith Merrill, Jr. was found guilty by a jury on three substantive counts of robbery of a federally insured bank and a fourth count of conspiracy to commit such robbery. Merrill challenges his conviction on six points: (1) the Government’s alleged failure to establish the District Court’s jurisdiction, i. e., that the bank was federally insured; (2) use of a transcript of Merrill’s testimony at a previous removal proceeding infringed his privilege against incrimination; (3) the introduction of a spontaneous statement made by the robbery victim at the scene as part of the res gestae; (4) the admission into evidence of a motel registration card bearing Merrill’s fingerprint; (5) the denial of Merrill’s protective motion that in the event he testified, inquiries as to prior convictions would not be permissible; and (6) the Government’s alleged failure to prove beyond a reasonable doubt that the robbery victim’s death was caused by the injuries received in the robbery. We find no merit in any of these contentions and, therefore, affirm the judgment.
1. Proof of F.D.I.C. Coverage:
The federally insured status of the Blackpipe State Bank of Martin, South Dakota, was proved by the certificate of the Federal Deposit Insurance Corporation issued to the bank in the regular course of business. This, together with testimony that the insurance premium was paid, was quite sufficient proof that the bank was federally insured under 18 U.S.C. § 2113(f). Scruggs v. United States, 450 F.2d 359 (8 Cir. 1971), cert, denied, Chambers et al. v. United States, 405 U.S. 1071, 92 S.Ct. 1521, 31 L.Ed.2d 804 (1972).
2. Use of Merrill’s Testimony at Removal Hearing:
Portions of Merrill’s testimony at his removal hearing held in Chicago in which he said that he had never been to Martin, South Dakota, and did not “ever remember going to South or North Dakota’’ were admitted at his trial. Merrill was represented by counsel at the removal hearing and he does not claim that he was not fully and adequately warned of his rights. In fact he was clearly warned at the hearing that his testimony there might be used against him at any future trial. Merrill cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 247 (1968), as authority for excluding his prior testimony. There the Court held that Simmon’s testimony at a motion to suppress was not admissible at his trial on the merits. This holding protects a defendant from the necessity of foregoing one constitutional right (privilege against self-incrimination) in order to exercise another one (right to be free from unreasonable search and seizure). In the present case, however, only the privilege against self-incrimination was involved; the exercise of no other constitutional privilege was dependent on Merrill’s decision to testify at the removal hearing. Merrill’s decision was entirely one of trial strategy. The general evidentiary rule is controlling, i. e., that one’s testimony at a prior hearing is admissible in evidence against him at subsequent proceedings. Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L.Ed.2d 1047 (1968). A long line of cases holds that false exculpatory statements are properly admissible as substantive evidence as tending to show guilt. E. g., Rizzo v. United States, 304 F.2d 810, 830 (8 Cir. 1962), cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962).
3. Introduction of Spontaneous Statement of O. A. Hodson:
The record indicates that in the ■ early morning of Monday, October 26, 1970 O. A. Hodson, the 88 year old President of the Blackpipe State Bank at Martin, South Dakota, and his son Richard, an officer of the bank, had breakfast at a local hotel in Martin. O. A. Hodson left the cafe before his son and proceeded to the bank.
Merrill and his stepson, Robert J. Bruce, had driven to the bank earlier in a rented car and had parked near the rear entrance of the bank. Merrill and Bruce had not expected Hodson to appear so early. When the latter had reached the entry way of the bank, Merrill, armed with a pistol, and his stepson ran up to Hodson and demanded that he open the bank door. When he refused, Merrill hit him on the head with the pistol and Hodson began to bleed profusely, whereupon Merrill took the bank keys from him, opened the door and dragged Hodson into the posting room behind the tellers’ section. He then tied Hodson’s hands behind his back and taped his feet and his mouth. When Hodson refused to give the combination of the safe to Merrill, the latter searched through the teller’s cage and drawers and took the bait money. Merrill again demanded the combination and when Hodson refused, kicked him on the buttocks, ribs, belly and back near the left hip. Hodson’s wallet was taken from him and his body was thrown in the corner against a wastepaper basket.
Merrill removed approximately $100 from the wallet and then threw it in the wastebasket. Hodson’s eyeglasses were also found in the wastebasket. Bruce and Merrill were in the bank about half an hour when Bruce became alarmed and fled the bank at the sight of Richard Hodson outside the bank. The father signalled to Richard and he, along with his brother Bruce Hodson, also a bank officer, came running up. When the tape was removed from the elder Hodson’s mouth and his hands were untied, he told his son Bruce:
“He could not believe that somebody would tie and gag another human being and then stomp him. He said, ‘Son, I didn’t think anybody would do that to a dog.’ ”
This conversation was admitted into evidence as res gestae. The record shows that the elder Hodson was nervous, apprehensive and in a state of emotional shock. He was bleeding actively from headwounds. The statements were made under the stress and strain of the moment. Because of these circumstances and the close proximity of the utterances to the event, the trial judge determined that Hodson’s statement was admissible. Such a determination rests with the sound discretion of the trial court, to be disturbed only when clearly erroneous. Roberts v. United States, 332 F.2d 892, 898 (8 Cir. 1964), cert, denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). A careful study of the record supports the District Court’s determination.
4. Admission of Motel Registration into Evidence:
There is no merit to the contention that Merrill’s registration card with the Hot Springs, South Dakota, motel, where he and Bruce spent the night the day before the robbery, was improperly admitted into evidence. It was identified by the motel’s manager, who had personally prepared it when Merrill registered and who testified that such registration cards were kept in the ordinary course of business. A motel clerk testified that at the request of the F.B.I. she had searched the motel’s business records for the card. The cards were indexed alphabetically and Merrill’s card was found in its proper place. The card was examined by experts at the F.B.I., who were able to develop Merrill’s latent fingerprint. This proof met the test of 28 U.S.C. § 1732. See United States v. Anderson, 447 F.2d 833, 838 (8 Cir. 1971), cert, denied, 405 U.S. 918, 92 S. Ct. 943, 30 L.Ed.2d 788 (1972). In addition, Bruce testified for the Government that he and Merrill spent the night at the motel as shown on the registration card.
5. Merrill’s Protective Motion Concerning the Use of Former Convictions:
Merrill moved for a protective order prohibiting the Government from cross-examining him on his felony record in the event he took the stand. He claims that because the motion was denied, he was barred as a practical matter from taking the stand in his own defense. It is hornbook law that one who takes the stand in his own defense may be cross-examined relative to prior convictions. United States v. Scarpellino, 431 F.2d 475, 478-479 (8 Cir. 1970).
6. Proof as to the Cause of Death of O. A. Hodson:
Merrill claims that the Government failed to prove beyond a reasonable doubt that O. A. Hodson’s death resulted from injuries which he received in the bank robbery. We have carefully reviewed the record on this point and cannot agree.
Hodson was 88 years of age at the time of the robbery. Prior to the robbery he was in “excellent health,” according to his physician, Dr. Gerald Walton. Dr. Walton was a 38 year old graduate of the Southwestern Medical School at Dallas and had been in the practice at Martin, South Dakota, since 1965. He had been O. A. Hodson’s doctor since coming to Martin and had seen him frequently around town and a few times professionally. During this period Hodson was never hospitalized and suffered no serious illnesses. A routine physical examination made by Dr. Walton on January 8, 1970, indicated that Hodson’s cardiogram was “within normal limits” and his health “excellent.”
On the morning of the robbery Dr. Walton received an emergency call to come to the bank and he arrived there shortly after 8:00 a. m. He found Hod-son “lying on the floor . . . somewhat in a state of emotional shock and very nervous and apprehensive. He was bleeding actively from a head wound.” Dr. Walton had him removed by ambulance to the hospital. Examination showed no evidence of any skull fracture or bleeding under the skin. His blood pressure was 132 over 58, somewhat lower than at previous examinations but “not significantly low.” His respiration and temperature were normal, but his pulse showed “some irregularity.” Tests indicated pus cells in his urine which were related more to trauma than to infection. He had developed a cardiac irregularity with “some weakness and dizziness for several days and ran a persistent elevated blood count, white blood cells . . . ” He was placed on antibiotics “. . . because of his age and the wounds that he had received on the head.” He was discharged from the hospital on October 30 “to home rest.” At the time he was “somewhat weak, still having some cardiac irregularity but his wounds seemed to be healing well at that time.” There was some swelling in the left hip area along with some bruises in the buttocks and hip. Dr. Walton found the heart irregularity to be the result of stress associated with the robbery assault. An examination on November 12 at Dr. Walton’s office revealed an anemic condition with elevated white cell count. Diarrhea had also developed and Mr. Hodson experienced slight confusion and vertigo for several days. Mr. Hodson was returned to the hospital on November 19, 1970, with acute diarrhea and acute urinary retention. He was catheterized and 2000 c.c.’s of urine were removed from the bladder. An earlier urinalysis on October 27 “indicated there was evidence of injury or trauma to the urinary tract.” Hodson began to spike fever on the day of admission to the hospital. The doctor attributed this condition to the urinary tract obstruction and infection in turn related to difficulty in urination and treatment for the diarrhea and to the “possible injury.” During hospitalization Hodson developed fluid in the lungs because his heart was not sufficiently pumping the blood fluid through his system. A tracheostomy was performed on November 25 to facilitate suctioning of the lungs and assist breathing. On November 28 Mr. Hodson suffered a cardiac arrest and died. Dr. Walton found that the causes of death “were related to his initial injuries [suffered at the bank robbery] and complications that developed thereafter. An autopsy of Mr. Hodson by Dr. Freeman revealed “large black and blue areas over the dorsal surface of the hands,” indicative of intravenous infusion; lacerations on the top of the head which were healed; heavier lungs than usual with probable areas of pneumonia; a blood clot in the main artery of the heart: “a normal size heart and remarkably good for a man of his age”; liver within normal weight range; kidneys were normal; bladder was discolored or red; a scar was found in the cerebellum of four weeks or more duration. Dr. Freeman concluded that the cause of death was “hospitalization leading to — with bed rest — leading to bronchial pneumonia and pulmonary em-bolus.”
The cause of death issue was properly submitted to the jury and it found against Merrill. Viewing the evidence, as we must, in the light most favorable to the prosecution, we believe that the Government clearly sustained its burden of proof. Evidence of a chain of causation leading from injuries suffered in the robbery assault to Hodson’s death was strong and there were no missing links in that chain.
In the light of all of these considerations the judgment is affirmed.
. Merrill asserts that Dr. Walton could not relate the infection, urinary retention or diarrhea to the blows received at the bank robbery. In his direct testimony Dr. Walton did say that “it would be impossible to say specifically that the infection came about as a result of the blows.” However, on cross-examination he was shown the October 27 urinalysis which he said:
“I hadn’t seen for some time” and this did indicate injury or trauma to the urinary tract. This in turn brought on difficulty in urination and infection. Merrill also claims that there was no evidence of bed rest. The record, however, shows continuous bed rest during two periods of hospitalization together with “home rest.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
COLEMAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 8720.
Circuit Court of Appeals, Third Circuit.
Argued Jan. 19, 1945.
Decided Sept. 21, 1945.
Edward J. Griffiths, of Philadelphia, Pa., for petitioner.
Hilbert P. Zarby, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before BIGGS and GOODRICH, Circuit Judges, and LEAHY, District Judge.
LEAHY, District Judge.
Petitioner seeks review of a decision of the Tax Court of the United States that she was liable for certain deficiencies and was not entitled to a claimed refund. The Commissioner assessed deficiencies in income taxes against petitioner, Helen W. Coleman, in the sum of $350.96 for the year 1938, $629.33 for the year 1939, and $391.33 for the year 1940. She, in turn, filed claims for refund for the same years in the amounts as follows: 1938, $2301.63; 1939, $2554.63; 1940, $2968.55.
On March 22, 1934, Horace C. Coleman, husband of petitioner, assigned to Pennsylvania Company for Insurances on Lives and Granting Annuities, Eleanor B. Klemm and Philip F. Coleman, as trustees, certain life insurance policies the proceeds of which were upon his death to be collected and held: “In Trust, from and after the death of the Settlor and during the life of the wife of the Settlor to pay and distribute unto her the net income from the trust estate, and if in any year the net income from the trust estate shall be less than Twelve Thousand Dollars ($12,000) then upon the written request of the wife of the Settlor lodged with the corporate Trustee, the Trustees shall make payment to the wife of the Settlor out of the principal of the trust estate such sums as may be required ripon her request as aforesaid to cause the wife of the Settlor to receive out of the income and/or principal of the trust estate at least the sum of Twelve Thousand Dollars ($12,000) per year, the said annual payments to be made in monthly installments of not less than one thousand dollars ($1,000) each; which payments of income are conditioned upon the wife of the settlor first having filed the necessary election to take under the will of the Settlor, and if the said election shall not be so filed so that the wife of the Settlor shall be entitled to an interest in the estate of the Settlor under the intestate laws of the Commonwealth of Pennsylvania and not under his will, then her interest in this trust estate, and the net income therefrom shall be thereby terminated and ended.”
The Tax Court found the facts as stipulated. See 3 T.C. 943. Horace C. Coleman died August 11, 1936, leaving a will in which he made some additional provision for his, wife. On December 18, 1936, she filed her election to take under the will and on January 29, 1937 notified the trustees to pay the designated monthly sums regardless of available income. In each of the years 1938, 1939 and 1940, the income was insufficient to meet the payments of $1,000 a month and the remainder was paid out of corpus.
Determination of the question involved is dependent upon whether the annual income which petitioner received from the trust created by her husband is taxable to her or is taxable against the trustees and payable by them under the provisions of the Revenue Act of 1938. Respondent contends the payments to taxpayer were properly taxable to her because they were payments of income made pursuant to a provision of a testamentary trust which gave her “the net income from the trust estate.” Respondent argues further that the provision requiring the beneficiary to file a written request made the gift a contingent one of an uncertain amount and did not change her status from an income beneficiary to that of a legatee.
1. The main question is what was the nature of the gift. The trust indenture makes this a gift of a definite sum payable at stated intervals; and the intention of the testator is that the sum is to be payable in any event, regardless of the existence of income. The direction to the trustees is mandatory upon the performance by the beneficiary of two conditions: first, she must file an election to take under the will; and second, she must file a request that payment be made out of principal so far as necessary to make up the required amounts. Since the beneficiary performed both conditions, the trustees had no choice but to make the payments in any event. It is clear, then, the testator intended the gift to be satisfied out of principal if the income proved insufficient, despite the fact that he first gave her the “net income from the trust estate.”
Burnet v. Whitehouse, 283 U.S. 148, 51 S.Ct. 374, 375, 75 L.Ed. 916, 73 A.L.R. 1534, governs. There testator bequeathed to a Mrs. Whitehouse for life an annuity of $5,000, payable half-yearly. The executors were to “provide for the payment and satisfaction of any annuity given by me.” In sustaining the taxable’s claim, the Supreme Court said: “As held below, the bequest to Mrs. Whitehouse was not one to be paid from income, but of a sum certain, payable at all events during each year so long as she should live. It would be an anomaly to tax the receipts for one year and exempt them for another simply because executors paid the first from income received and the second out of the corpus.” The Whitehouse case was followed by Helvering v. Pardee, 290 U.S. 365, 370, 54 S.Ct. 221, 78 L.Ed. 365, and Union Trust Company v. Commissioner, 7 Cir., 111 F.2d 60, 62. We augmented that following in Union Trust Co. v. Commissioner, 3 Cir., 115 F.2d 86, where the trustee was directed to make monthly payments to various persons, and if the income in any year was insufficient for that purpose the deficit should be made up from principal. The income exceeded the amount of the charged payments in the year in question. We held, nevertheless, that the trustee could not, under § 162(b) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code, § 162(b), deduct amounts so paid on the ground that the payments were distribution of income. Subsequently, Frank H. Mason Trust v. Commissioner, 6 Cir., 136 F.2d 335, likewise denied a contention similar to that of the Commissioner in the instant case. It is clear from these cases that where, as here, payments are to be made to the beneficiary in specified amounts and at stated intervals at all events, regardless of the existence of sufficient income, they are to be treated as made in discharge of a gift and not as distribution of income. In such situations, the trust estate and not the beneficiary must pay the tax. The degree of probability of invasion of corpus is wholly immaterial. The important thing is that the payments are made and charged against the estate payable in all events, and nothing turns on the fortuitous circumstance of whether the corpus was in fact invaded.
2. The sole remaining question is whether the rule is not applicable because the beneficiary here was required by the terms of the trust to perform the two mentioned conditions. The condition that the beneficiary file an election to take under the will in lieu of her statutory rights can not control; this has already been decided in the Pardee case, supra! The second condition for notice to the trustees in the absence of sufficient income is likewise irrelevant. Since both conditions were met, there was no discretion in the trustees. It was mandatory upon them to pay the stated sums in any event. There is no difference in substance between directing trustees to make up regular stipulated payments and directing them to do so upon the happening of a contingency, to-wit, the filing of a request to that effect by the beneficiary, for once the request is filed there is in effect a true direction to make the payments in any event, regardless of the existence of income. The gift here, then, is substantially similar to the gifts in the cases cited.
3. An opposite result has recently been reached in Frankel v. Commissioner, 8 Cir., 144 F.2d 1023. It is unnecessary to consider whether the Frankel case is distinguishable, as petitioner contends it is, for the present question is controlled, we believe, by the Whitehouse case and our former views in Union Trust Co. v. Commissioner, supra. Our conclusion would appear to be reenforced by the enactment of Sec. 111 of the Revenue Act of 1942, c. 619, 56 Stat. 798, 809, 810 (amending Secs. 22(b) (3) and 162 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Acts, which provides that beginning with the taxable year 1942, in all cases the legatee may be taxed to the extent that income is actually distributed to him. The Congressional Committee Reports show clearly that the law, as declared in the Whitehouse and Pardee cases, supra, was intended to be changed by the 1942 amendment.
The conclusion is the tax on the payments made is chargeable against the trustees and the petition for refund by the beneficiary should be allowed.
Reversed.
Her direction to the corporate trustee reads:
“In accordance with the terms of the Horace G. Coleman Insurance Trust, I hereby request the Trustees of said trust estate to pay over to me $12,000.00 per year in monthly installments of $1,000.00 each.
“If the net income of the trust estate does not amout to $12,000 in any year, I request that such sums as may be required to make up that amount be taken out of the principal of the trust estate.”
The pertinent provisions of the Regulations and the Revenue Act of 1938, in force for the years covered by the taxes here involved, provide as follows:
See. 161(b) of the Revenue Act of 1938, 52 Stat. p. 517, 26 U.S.C.A. Int.Rev.Acts, page 1080, provides, with reference to taxes on estates and trusts:
“Computation and payment. — The tax shall be computed upon the net income of the estate or trust, and shall be paid by the fiduciary, except as provided in section 166 (relating to revocable trusts) and section 167 (relating to income for the benefit of the grantor).”
Sec. 162 of the Revenue Act of 1938, 52 Stat. p. 517, 26 U.S.C.A. Int.Rev.Acts, p. 1081, provides:
“Sec. 162. Net Income.
“The net income of the estate or trust shall be computed in the same manner and on the same basis as in the ease of an individual, except that—
* * * * * *
“(b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries, and the amount of the income collected by a guardian of an infant which is to be held or distributed as the court may direct, but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not.”
See. 22(b) (3) of the Revenue Act of 1938, 52 Stat. p. 458, and Sec. 22 of the Internal Revenue Code, 26 U.S.C.A. Int. Rev.Code, § 22(b) (3), provide:
“Sec. 22. Gross income * * * (b) Exclusions from gross income. The following items shall not be excluded in gross income and shall be exempt from taxation under this chapter: * * *
“(3) Gifts, bequests, and devises. The value of property acquired by gift, bequest, devise, or inheritance (but the income from such property shall be included in gross income).”
Regulations 103. Sec. 19, 162-1, provides:
“From the gross income of the estate or trust there are also deductible (either in lieu of, or in addition to, the deductions referred to in the preceding paragraph of this section) the following:
* * * sis * * *
“(2) Any income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to a beneficiary, whether or not such income is actually distributed.
“(3) Any income of the estate of a deceased person for its taxable year which is properly paid or credited during such year to a legatee or heir, and any income either of such an estate or of a trust for its taxable year which is similarly paid or credited during that year to a legatee, heir, or beneficiary if there was vested in the fiduciary a discretion either to distribute or to accumulate such income.
$ # sjc :;s jj« sk :j:
“Any amount described in paragraph (2) or (3) of this section as being deductible from the gross income of the estate or trust shall be included in computing the net income of the legatees, heirs, or beneficiaries, whether distributed to them or not.”
In each of the years from 1938 to 1940 the petitioner received $12,000, which included distribution from principal as follows: 1938 — $! ,318.82; 1939 — $950.00; 1940 — $750.00. The Commissioner states “that in this case the only amounts exempt as bequests under Sec. 22(b) (3) are the payments of corpus actually made.” The fiduciary return of the trustees for 1938 shows income taxable to petitioner in the amount of $10,871.25 and for 1939 $10,95S.88, which sums were included in taxpayer’s returns for those years. The fiduciary’s 1940 return showed income taxable to petitioner in the amount of $11,-321.41; but petitioner included in her return for that year $11,320.40. Petitioner, here, seeks refund on all taxes paid by her on income paid to her from the trust established by her deceased husband.
In Union Trust Company v. Commissioner, supra, testator directed that an annual sum in monthly installments should be paid to beneficiaries from income of his residuary estate, any deficiency to be made up out of the corpus, “to be discharged from future income as and when income in sufficient amounts is realized.” It was hold that payments made by the trustee to beneficiaries were not deductible by the trustee even though payments were actually made from the income, since the bequests constituted a charge on the corpus, notwithstanding the charge against future income. In reaching this result the court said: “Thus, the controlling factor seems to be that the decedent directed the payments to be made in any event, regardless of the existence of income.”
The pertinent part of the Section is as follows:
“(1) Amounts distributable out of income or corpus. In cases where the amount paid, credited, or to be distributed can be paid, credited, or distributed out of other than income, the amount paid, credited, or to be distributed (except under a gift, bequest, devise, or inheritance not to be paid, credited, or distributed at intervals) during the taxable year of the estate or trust shall be considered as income of the estate or trust which is paid, credited, or to be distributed if the aggregate of such amounts so paid, credited, or to be distributed does not exceed the distributable income of the estate or trust for its taxable year.”
The view of the Congressional Committee with respect to the law prior to 1942, and the purpose of the amendment, is set forth in S.Rep.No.1631, 77 Cong., 2d Sess., pp. 59, 60.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_prejud
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid 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".
Eddie BRUNSON, Petitioner-Appellant, v. Gerald HIGGINS, Superintendent, Respondent-Appellee.
No. 82-1961.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 17, 1982.
Decided June 9, 1983.
John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, Mo., for respondent-appellee.
George M. Bock, Slagle & Bernard, P.C., Kansas City, Mo., for petitioner-appellant.
Before ROSS, JOHN R. GIBSON and FAGG, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Eddie Brunson appeals the district court’s, 542 F.Supp. 216, denial of his petition for postconviction relief pursuant to 28 U.S.C. § 2254. Brunson contends that his trial counsel was ineffective in failing to make a motion to disqualify the jury panel and in improperly putting into evidence Brunson’s prior convictions. Brunson further argues that he did not have the opportunity for full and fair litigation of his Fourth Amendment claims in state court. We affirm.
Brunson was convicted of burglary in the second degree and stealing in July 1976. Brunson was tried in Jackson County, Missouri, and was represented at trial by an attorney from the Jackson County Public Defender’s office. The Missouri Court of Appeals subsequently affirmed his conviction. State v. Brunson, 559 S.W.2d 60 (Mo. App.1977). Brunson then sought, and was denied, state postconviction relief under Mo. R.Civ.P. 27.26. Brunson subsequently sought federal posteonviction relief pursuant to 28 U.S.C. § 2254. The district court found no basis for relief and denied Brun-son’s petition without a hearing.
I. Ineffective Assistance of Counsel
A. Failure to Challenge Jury Panel
Brunson first contends that his attorney was ineffective in failing to move to strike the jury panel at his trial on the basis that it did not represent a fair cross section of the community due to the exclusion of women from jury panels in Jackson County. At the time Brunson was tried Missouri law provided that although women were eligible to serve on juries, they would be exempted from jury service on request. § 494.031, Mo.Rev.Stat. (Supp.1975).
On January 21, 1975, approximately a year and a half before Brunson’s trial, the United States Supreme Court had held the Louisiana jury selection system unconstitutional because it resulted in the systematic exclusion of women from juries. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Under the Louisiana scheme women were automatically excluded from jury service unless they affirmatively chose to serve. On September 27, 1977, fourteen months after Brunson was tried, the Missouri Supreme Court upheld the state’s jury selection system in the face of the same type of attack made in Taylor. State v. Duren, 556 S.W.2d 11 (Mo. en banc 1977). The Missouri Supreme Court distinguished Taylor on the basis that Taylor had involved a system under which women were automatically excluded from jury service unless they chose to serve, whereas under the Missouri scheme women were automatically eligible unless they chose to be exempt. The court also concluded that the Missouri system resulted in a greater percentage of women serving on juries than had the Louisiana system. On January 9, 1979, approximately 2V2 years after Brun-son’s trial, the Missouri Supreme Court’s decision in State v. Duren was reversed in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), in which the United States Supreme Court held the Missouri jury selection system unconstitutional because, like the Louisiana scheme, it was found to result in the systematic exclusion of women from juries.
Brunson contends that after Taylor v. Louisiana it was clear that the Missouri jury selection system was invalid, and that it constituted ineffective assistance of counsel not to challenge the composition of the jury panel at Brunson’s trial.
The district court, in a footnote to its original order of March 24, 1982, denying Brunson’s § 2255 petition, specifically eon-sidered the failure to raise the Duren motion. The court later vacated this order sua sponte for further consideration of the Du-ren question and entered a final ruling on July 6, 1982. In both orders the district court reviewed the following findings of the Missouri Circuit Court which had considered Brunson’s 27.26 petition:
No evidence was presented at the trial or at this hearing concerning these issues. Defense counsel testified that he had only been a member of the Jackson County Public Defender’s office for about a month when he tried this case. He stated he believed that the statistical evidence for a Duren motion was being compiled by the Public Defender’s office at that time but that it apparently was not complete as it had not been presented in any case to date to his knowledge.
In the March 24 order the district court had considered the findings of the Circuit Court under 28 U.S.C. § 2254(d), Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), and Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and presumed the findings to be correct because none of the eight factors enumerated in § 2254(d) were present. In the July 6 order the court discussed at length Benson v. State, 611 S.W.2d 538 (Mo. App.1980), in which the Missouri Court of Appeals had dealt with a fact situation very similar to this case. The Missouri Court of Appeals concluded in Benson that, at least as to cases tried between Taylor v. Louisiana and State v. Duren, the viability in Jackson County of a jury panel challenge based on the exclusion of women remained speculative, and stated that as a general rule counsel would not be deemed ineffective for failing to make such challenges in cases tried before State v. Duren. The district court concluded that the general rule in Benson was “in accord with the controlling principles of law of this Circuit.” The court found no reason not to apply the Benson rule, and summarized, “We find and conclude that under the circumstances of this case, counsel was not ineffective for failing to raise a Duren motion at the time of petitioner’s trial. Our memorandum and order of March 24,1982 should therefore be reinstated.” The findings of the district court on this issue were not clearly erroneous, and there is no error of law in its conclusions.
In order to establish ineffective assistance of counsel Brunson must establish (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and (2) that he was prejudiced by his attorney’s ineffectiveness. Harris v. Housewright, 697 F.2d 202 (8th Cir.1982); Eldridge v. Atkins, 665 F.2d 228 (8th Cir.1981), cert. denied 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). Counsel need not perform perfectly, and will not be held ineffective for failure to raise every tangential issue which might have a bearing on his client’s case. “Counsel does not fail to render effective service if there is little or no likelihood that a reasonable lawyer under similar circumstances would consider the alleged defense reasonably essential to the case.... counsel’s duty is to assert all apparent ‘substantial defenses’ available.” Reynolds v. Mabry, 574 F.2d 978, 981 (8th Cir.1978).
The failure to anticipate a change in the law will not generally constitute ineffective assistance of counsel. United States v. Hach, 615 F.2d 1203 (8th Cir.), cert. denied 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). Although in Lee v. Missouri, 439 U.S. 461, 462, 99 S.Ct. 710, 711, 58 L.Ed.2d 736, 739 (1979), a companion case to Duren v. Missouri, the United States Su preme Court stated that Duren v. Missouri did not “announce any ‘new standards’ of constitutional law” not already evident from Taylor, it is clear that before Duren v. Missouri many attorneys believed the Missouri jury selection system was valid under Taylor, as evidenced by the Missouri Supreme Court’s decision upholding the system in 1977.
The fact that those who believed the Missouri system to be constitutional were later proved wrong does not establish that they were incompetent. In Benson, the Missouri Court of Appeals dealt with an attorney’s failure to make a jury panel challenge in a trial which, like Brunson’s, occurred between the Taylor v. Louisiana and State v. Duren holdings. The court stated:
A movant asserting a Duren type claim, tried during the period involved, bears the burden of showing that reasonably competent lawyers rendering similar services under existing circumstances would have filed a motion to quash the jury panel and offered proof in support of it.
Hindsight based on the holding in Du-ren v. Missouri has no place in that evaluation. The issue must be considered in the light of whether a reasonably competent lawyer would have considered such a motion a substantial defense reasonably essential to the case at the time of trial. The determination of that question inevitably involves a professional judgment on the reach and scope of the holding in Taylor v. Louisiana. In the light of the [state trial court holdings that the Missouri jury selection system was valid] and the subsequent affirmance of those trial court holdings in the Supreme Court of Missouri, a determination that a reasonably competent lawyer should have predicted the holding in Duren v. Missouri is not possible.
611 S.W.2d at 544-45.
We agree with the district court that the Benson reasoning is persuasive.
Brunson argues that the district court based its decision in part on the Benson court’s finding that in the summer of 1976 jury selection data was not available to the Public Defender’s Office in anything other than uncompiled “raw” form which would have been “virtually impossible” to present to the trial court. 611 S.W.2d at 543. Brunson contends that the district court therefore violated this court’s mandate in Hill v. Wyrick, 570 F.2d 748 (8th Cir.), cert. denied 436 U.S. 921, 98 S.Ct. 2272, 56 L.Ed.2d 764 (1978), that a district court not rely on findings in state court proceedings without examination of the underlying transcript. We disagree with Brunson’s characterization of the district court’s use of Benson. The district court was dealing with Benson as legal authority. The district court referred to Benson’s statement that the factual compilation of statistical evidence “was not available until November, 1976” simply as an introduction to its lengthy quotation of legal principles from Benson. In addition, Hill v. Wyrick was dealing with the necessity of examining the state hearing transcript on the very habeas petition which was before the district court. Hill simply has no application to the situation before us. The district court had referred to the findings of the Circuit Court with respect to the Duren issue and had properly presumed them correct. These were the factual determinations upon which the district court was basing its conclusions of law. The facts upon which Benson was based were simply consistent with these facts.
Brunson contends that if the district court had held a hearing on his § 2254 petition, he would have proven that the factual findings of Benson were erroneous. He contends that he would have presented substantial evidence that other attorneys were making Duren -type challenges at the time Brunson was tried, and that the Jackson County Public Defender’s office itself was in the forefront in making these challenges. He also contends that he would have proven that data demonstrating the underrepresentation of women on Jackson County juries sufficient to sustain a jury panel challenge was available to Brunson’s attorney at the time of trial.
We conclude that such evidence, even if accepted, would not have established that Brunson’s trial counsel was ineffective. To establish ineffective assistance of counsel a petitioner must show that his attorney failed to exercise the customary skill and diligence of a reasonably competent attorney. In this case, however, the viability of the defense which counsel failed to assert was not established at the time the case was tried. Regardless of whether other attorneys may have been filing challenges to jury panels, and regardless of the information available to Brunson’s attorney on the composition of jury panels in Jackson County, we must conclude that he cannot be found to have fallen below the standard of customary skill and diligence for failure to present what was at the time a speculative, rather than an established, defense.
The Missouri Court of Appeals reached this same conclusion in Williamson v. State, 628 S.W.2d 895 (Mo.App.1981). The petitioner in Williamson had been tried in Jackson County after the Missouri Supreme Court’s decision in State v. Duren, in which the Supreme Court had set out in detail much of the data on jury panel composition in Jackson County. This information clearly was available to the attorney in Williamson, and the court additionally found that the attorney was “aware that the public defender’s office was routinely filing motions to quash jury panels in Jackson County.” Id. at 897. Nevertheless, the Missouri Court of Appeals declined to find ineffective assistance of counsel because the defense itself was speculative at the time.
Brunson also argues that even if the data on jury selection had been in “raw” form at the time of Brunson’s trial, a motion to quash nevertheless could have been supported by a stipulation. Brunson has cited only one case in which such a stipulation was filed before 1977: State v. Minor, 556 S.W.2d 35 (Mo. en banc 1977), a murder case tried in December 1975. Minor was tried only three weeks after State v. Lee, 556 S.W.2d 25 (Mo. en banc 1977), vacated sub. nom. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), another murder case in which a Duren -type challenge was made and in which numerical data on the number of women on Jackson County juries had been presented. In his testimony at the 27.26 hearing, Brunson’s trial counsel stated that he believed “it would serve the defendant in a burglary case no real purpose” to file a jury panel challenge because of the “long appellate process” necessary on such an issue. Thus, the decision not to file a motion to quash the jury panel was in part a matter of judgment of counsel. This reasoning, together with the fact that the Minor trial followed Lee by only three weeks, explains why Minor’s counsel filed a stipulation and Brunson’s did not. The other cases cited by Brunson in which stipulations were filed were all tried in 1977 and involved stipulations as to the 1976 and 1977 jury wheels. See: State v. Buford, 582 S.W.2d 298 (Mo. App.1979); State v. Coleman, 582 S.W.2d 335 (Mo.App.1979); State v. Tate, 582 S.W.2d 329 (Mo.App.1979).
Brunson argues that his counsel’s testimony as to why he did not file a motion objecting to the jury panel was speculative. When asked if he recalled why the motion was not made, counsel answered:
Not specifically. Based on the timing of this case, I believe it would have been my judgment that the evidence was not that well prepared in our office yet. Although later we did file those motions as a matter of course.
When asked if the statistical data to support the motion was available at the time of Brunson’s trial, counsel answered:
Every year we had to redevelop the data base for the jury — whole—in use that particular year. And I can’t at this particular point tell you what the status of it was for that year at that time.
This testimony is not a model of specificity and is hedged. However, it supports the Circuit Court’s findings that the statistical evidence for a Duren type challenge was being compiled but was not yet complete. The district court presumed this finding to be correct, and we can discern no error in this respect.
Brunson argues that the Missouri courts have been inconsistent in their rulings on the effects of the Duren v. Missouri holding. The Missouri Court of Appeals has held that Duren will affect cases differently depending on when they were tried. See, e.g.: State v. Williams, 595 S.W.2d 378 (Mo. App.1980) (court invoked plain error rule to grant new trial where no jury panel challenge had been made in case tried after State v. Duren); State v. Mountjoy, 585 S.W.2d 98 (Mo.App.1979) (court refused to grant new trial under plain error rule where no jury panel challenge had been made in case tried before State v. Duren). The fact that the Missouri Court of Appeals has not found counsel ineffective for failure to make a jury panel challenge before the Supreme Court’s decision in Duren v. Missouri is not inconsistent with its other rulings, however. The Missouri courts have simply recognized that the standard of skill required of attorneys does not demand that they correctly anticipate future changes in the law.
We conclude that the district court did not err in failing to hold a hearing on this issue, and we affirm the district court’s ruling that the failure of Brunson’s attorney to move to quash the jury panel at trial did not constitute ineffective assistance of counsel.
B. Evidence of Brunson’s Prior Convictions.
Brunson next contends that his counsel was ineffective in eliciting from him at trial a statement that he had three prior burglary convictions. It is undisputed that at the time he was tried Brunson in fact had two prior convictions for burglary and one for stealing. At his 27.26 hearing Brunson also testified that he had a prior conviction for receiving stolen property. The stealing conviction and one of the burglary convictions were on appeal at the time Brunson was tried in July 1976.
At the 27.26 hearing trial counsel testified, and the Circuit Court found, that counsel wished to bring out Brunson’s prior convictions on direct in order to take the “sting” out of the prosecution’s use of the convictions in impeaching defendant. Under Missouri law, however, convictions which are on appeal cannot be used for impeachment purposes. State v. Blevins, 425 S.W.2d 155 (Mo.1968). Brunson argues that since the prosecution could not have impeached him with the two prior convictions which were still on appeal, his attorney acted improperly in bringing out these convictions.
In denying his 27.26 motion the state court found that bringing out the prior convictions was a matter of trial strategy, and concluded that Brunson had not been prejudiced by the testimony about his prior convictions. “A determination of a factual issue made by a state court of competent jurisdiction is presumed to be correct unless the petitioner shows it to be erroneous.” Smith v. Lockhart, 697 F.2d 267, 268 (8th Cir.1983). See also: Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). As we have stated before, “[t]he introduction by a witness himself, on his direct, of a prior conviction is a common trial tactic, recommended by textwriters on trial practice.” United States v. Bad Cob, 560 F.2d 877, 883 (8th Cir.1977). Although Brunson’s trial counsel may have erred in eliciting testimony of convictions on appeal which could not have been used to impeach him, the state court’s finding that Brunson was not prejudiced by this mistake is fairly supported by the record.
The evidence against Brunson at trial was strong. Brunson was arrested within a block of the house he was charged with burglarizing. There were signs that the house had been forcibly entered. It was apparent that items in the house had been moved, including a television set which was found sitting in the doorway. Shoeprints leading to the rear of the house were examined and found to be similar in size and shape to the soles of the shoes Brunson was wearing. In searching Brunson after the arrest police discovered a gold wedding band which the owner of the house identified as belonging to her.
By contrast, the trial error which Brun-son complains of affected only his credibility and “did not pertain to [his] guilt or innocence.” Tyler v. Wyrick, 635 F.2d 752, 755 (8th Cir.1980), cert. denied 452 U.S. 942, 101 S.Ct. 3089, 69 L.Ed.2d 958 (1981).
Brunson concedes that the prosecutor could properly have questioned him on at least one prior burglary conviction which had been affirmed by the Missouri Court of Appeals in 1973 and which was therefore final for impeachment purposes. The Circuit Court’s opinion denying Brunson’s 27.26 motion reveals that it believed Brunson could also properly have been impeached on his 1969 conviction for receiving stolen property. Brunson testified at his 27.26 hearing that he had a 1969 conviction for receiving stolen property, that this 1969 conviction was a “final” conviction at the time of his 1976 trial in the sense that no appeals from it were then pending, and that he had been incarcerated two years for this conviction. Brunson now argues that this conviction could not have been used to impeach him because he was a juvenile at the ■ time the conviction was obtained. Brunson made no such objection to the availability for impeachment purposes of the 1969 conviction at his 27.26 hearing or before the district court. On the contrary, his testimony that the conviction was final clearly implied that it could be used to impeach him at trial. On the basis of Brun-son’s own testimony, the state court’s finding that he could have been impeached on two prior convictions is amply supported by the record.
Once a defendant’s credibility has been tarnished by two prior convictions, it is pure speculation to assume that evidence of one or two additional convictions will prejudice his case. The state court found no prejudice and we must presume this finding to be correct. We are unable and unwilling to split the hairs of prejudice so finely as to conclude that the state court’s finding on this issue is erroneous.
II. Fourth Amendment Issues
Brunson finally contends that the wedding band found on his person should have been suppressed because it was discovered during an illegal search. A federal court may not grant habeas corpus relief on the basis that illegally seized evidence was used at Brunson’s trial unless it is found that the state failed to provide Brunson with the opportunity for full and fair litigation of his Fourth Amendment claim. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Brunson argues that he was denied the opportunity to fully and fairly litigate the suppression issue because the trial court failed to state its findings of fact and conclusions of law in denying his suppression motion and because the Fourth Amendment issue was not mentioned in the order denying his 27.26 motion.
This claim is without merit. Our review of the record reveals that before trial Brun-son’s attorney moved to suppress the wedding band and a hearing was held on the motion. At the hearing three witnesses testified, including the police officer who had searched Brunson, and the facts surrounding Brunson’s arrest and search were fully developed. Both Brunson’s attorney and the prosecutor made oral arguments on the motion. The judge interrupted the prosecutor’s argument to state the facts which the judge believed gave rise to probable cause to arrest Brunson and indicated that he thought the search of Brunson was proper since it was incidental to a lawful arrest. At the close of the prosecutor’s argument the trial judge formally denied Brunson’s motion to suppress. Brunson renewed his Fourth Amendment challenge during trial, and it was again overruled.
Brunson did not raise the Fourth Amendment issue on direct appeal, and the Missouri Court of Appeals made no reference to it in affirming his conviction. Brunson’s failure to raise the Fourth Amendment issue on appeal cannot prevent the application of the Stone v. Powell doctrine since “[i]t is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant’s use of those processes, that bars federal habeas corpus consideration of claims under Stone.” Lenza v. Wyrick, 665 F.2d 804, 808 (8th Cir.1981). Brunson also failed to raise the Fourth Amendment issue in his 27.26 motion. Despite his failure to include the issue in his motion the Circuit Court allowed Brunson to testify on the. Fourth Amendment question at his 27.26 hearing. We need not speculate on the reasons for the Circuit Court’s failure to discuss the Fourth Amendment question in denying Brunson’s 27.26 motion, but the significant fact is that he was not denied the opportunity to litigate the issue. Id.
We conclude that Brunson was given every opportunity to fully and fairly litigate his Fourth Amendment challenge, and that federal habeas corpus relief therefore cannot be granted on the Fourth Amendment basis. The district court did not err in denying this claim without a hearing.
Affirmed.
. The Honorable John W. Oliver, Senior United States District Judge for the Western District of Missouri.
. The state contends that Brunson has failed to exhaust his state remedies as to all points raised on appeal. The state raised the exhaustion question in a footnote to its argument without briefing the issue. From our review of the record it appears that Johnson has exhausted his state remedies.
. The Missouri Court of Appeals later reached essentially the same conclusion in regard to cases tried after State v. Duren but before Du-ren v. Missouri. See discussion of Williamson v. State, 628 S.W.2d 895 (Mo.App.1981), infra at 1358.
. Brunson had the opportunity to develop this evidence at his 27.26 hearing but failed to do so. The only evidence on the Duren issue presented at the 27.26 hearing was the testimony of Brunson’s trial counsel, set out infra at 1358-1359. Even if we were to conclude that the evidence Brunson wishes to introduce on this issue were relevant, we have doubts as to whether the district court could have considered it in light of Brunson’s failure to present it at his 27.26 hearing. “Such a disregard of state procedures to correct constitutional defects in state criminal trials is, in some instances, barred by the doctrine of exhaustion of state remedies.” Ashby v. Wyrick, 693 F.2d 789, 792, n. 3 (8th Cir.1982).
. These convictions have since been affirmed. State v. Brunson, 555 S.W.2d 359 (Mo.App. 1977).
. We reject Brunson’s argument based on the nature of his prior convictions. Brunson was on trial for both burglary and stealing. Under the circumstances, an admission of any combination of Brunson’s prior burglary, stealing or receipt of stolen property convictions would have been equally destructive of his credibility.
. The trial judge indicated that he believed the officer who arrested Brunson had done so on the basis of information provided by a police helicopter and by an eyewitness who saw defendant near the scene of the burglary.
. Brunson had originally filed a pro se 27.26 motion which included the Fourth Amendment issue. Brunson concedes that the issue was later deleted in an amended 27.26 motion, filed by Brunson’s appointed counsel, which purported to set forth “all the grounds known to the Movant for vacating, setting aside or correcting his conviction and sentence.”
. The court expresses its appreciation to appointed counsel for his capable and vigorous representation of petitioner.
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_state
|
10
|
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".
COLUMBIA INS. CO. v. KING.
Circuit Court of Appeals, Fifth Circuit,
February 26, 1929.
Rehearings Denied March 25, 1929 and April 3, 1929.
No. 5424.
G. E. Mabry, O. K. Reaves, D. E. Carlton, and E. C. Johnson, all of Tampa, Fla., for appellant.
Fred T. Saussy, of Tampa, Fla. (E. R. Dickenson and Watson & Saussy, all of Tampa, Fla., on the brief), for appellee.
Before WALKER and BRYAN, Circuit Judges, and GRUBB, District Judge.
GRUBB, District Judge.
This is an appeal from a final decree of the District Court for the Southern District of Florida in a cause in equity, ancillary to an action at law, in which the plaintiff (appellee) was seeking to recover of the defendant (appellant) on a poliey of fire insurance for the loss of a stock of goods. The law action was instituted by plaintiff in the state court, and removed by the defendant to the District Court. Upon its removal the plaintiff filed his bill in the District Court in aid of the suit at law, seeking by it to compel the defendant to issue a rider, to be attached to the poliey sued on, antedating the occurrence of the fire, authorizing the insured to remove the stock of goods and fixtures insured to a new location. The right of the plaintiff in the equity suit to the relief asked for depended upon whether a valid agreement was made by the defendant to issue the rider. The District Court so held, and entered its decree for the issuance of the rider, as prayed for in the bill. The suit at law was instituted on the 6th day of August, 1927. The suit in equity was begun October 31, 1927. The poliey was issued October 21, 1926. The fire occurred December 6,1926. The plaintiff in the equity suit died, pending the final decree, and the suit was revived in the name of his administrator, the appellee.
The right of the present plaintiff to relief depends upon: (1) Whether or not the insured was promised by Wolvington, a soliciting agent of the defendant, after the issue of the poliey, that a rider would be issued to him authorizing a change of location for' the insured goods and fixtures; and (2) whether or not (a) Wolvington had authority to bind the defendant by such promise, or (b) whether, in the absence of such authority, the promise was performed or ratified by the defendant or its authorized agent before the fire.
1. The evidence as to the promise by Wolvington to permit the removal and issue the rider evidencing it is that of the original plaintiff, Giddens, corroborated in, part by his father and the witness Hawkins. As against this is the evidence of Wolvington, to the effect that when applied to for the removal permit by the insured, he stated that he would have to refer the request to the special agent of defendant, Turner. It is not disputed that there was actually signed by defandant’s- agent Grant a removal permit which was produced from the defendant’s possession and introduced in evidence, and which bore the stamp of the Florida Inspection and Rate Bureau purporting to show its receipt December 2, 1926, at its Tampa office, and a second stamp purporting to show a receipt of the rider on December 3, 1926, by Strickland and Travis, general agents of the defendant, at Jacksonville. It was never delivered to the insured. The insured, in fact, removed his goods and fixtures to the new location. From these undisputed facts, and the other evidence, we conclude, as did the District Judge, that the insured before the fire, and before the removal of his goods to the new location, in which they were burned, was told by Wolvington that it would be all light for him to move his goods, that they would be covered when ■ removed, that a rider to that effect had been signed by Grant, the defendant’s agent, and would be delivered to him, and that the insured removed his insured property in reliance upon Wolvington’s representations and promises.
2. We find it unnecessary to determine whether Wolvington had authority to bind defendant by his oral promise to the insured, because the evidence is convincing that it was ratified by Grant, the Tampa agent of defendant, whose authority to issue tho rider is not disputed. The insured testified that on or about November 20, he applied to Wolvington, in his old store, for a removal clause, and that Wolvington said: “Go ahead and move; that he would see that I was protected and taken care of,” and that on a subsequent occasion, before the removal and before the fire, he was told by Wolvington “to go ahead and move, that I was fully covered,” and again, “that the endorsement was issued and that he would deliver it to me, as soon as possible.” The rider itself purports to have been signed by Grant on November 30, 1926; stamped by the Florida Inspection and Eating Bureau as having been received at its Tampa, office December 2, 1926, and by Strickland and Travis as having been received by them at Jacksonville, December 3, 1926. Tho witness Grant testified that he bad no recollection of having seen or signed it, but admitted it bore bis signature. Wolvington testified that he directed Grant’s stenographer, Miss Smith, to prepare it and hold it until Turner had approved it. No satisfactory explanation as to how it got to the Florida Inspection and Bating Bureau, except the supposition that it was taken there by mistake of an employe of the Bureau, is advanced by defendant. Tho witness Grant testified that the course of business was to make three copies of the rider; that “one of the riders is pasted to tho daily in the office, one given to the insured, and tho other is mailed to the local inspection bureau in Tampa, and they in turn send it on through to the company.”
From tho evidence in the record, we think the fair inference is that the insured applied to Wolvington for the removal permit; that Wolvington reported the application to Grant before November 30; that Grant acceded to Wolvington’s request that it be issued; that Wolvington asked Miss Smith to prepare it and present it to Grant for Ms signature, which she did; that it was signed by Grant and issued to the Florida Inspection and Eating Bureau by mail, and forwarded by the Bureau to Strickland and Travis at Jacksonville in the regular course of business, the insured’s eopv having been retained; that Wolvington, after securing Grant’s assent, reported to the insured that tho rider had been signed and that he would receive it in due course, and that tho insured, on that assurance, moved his goods and fixtures to the new store. Wolvington’s oral promise and agreement was approved by Grant, who had authority to issue removal permits, when .he signed the rider, and it became a, binding agreement when approved in writing by Grant, and sent by him, in the regular course of business, to tho Bureau. It might well be hold to be an issuance of the permit, though no copy was delivered to the insured to bo attached to the policy. It at least constituted an agreement to permit the removal of tho insured property to the new loca lion, and to cover it there, made by an agent of tlio insurer, and ratified by the agent of the insurer vested with authority to make such agreements. The agreement was acted upon by the insured only after notification to him by Wolvington that the rider had been issued and would later reach him, and before the destruction of the insured property, in order to show in the action at law that the insured property, after .being moved from its location, when the policy issued, was nevertheless entitled to tho protection of the policy, the plaintiff was entitled to have tho agreement to permit the removal completed by the delivery to it as evidence thereof of a rider dated before the fire, authorizing the removal of the insured property, for the purpose of attaching it to the policy sued on in the action at law, and made part of the contract of insurance. The defendant’s agent Grant received the full premium for one year on tho policy shortly after the fire. The defendant has retained tho full premium until now. In its answer to tho bill of complaint in this case filed February 13, 1928, it first offered to return the premium or the unearn-, ed part of it. The bill of complaint was filed October 31, 1927. Before answering, defendant filed a motion to dismiss, which was denied on January 20, 1928. The original bill fully disclosed the receipt of the full premium by Grant, in December, 1926. Eetention of the full premium, after notice, and until the defendant had by its motion contested the equity of the bill, was inconsistent with its present position that tho insurance ceased to remain in force after the removal of tho insured property to a new location, and was a recognition that the policy continued in force after, and in spite of, the removal. It docs not lie in the power of defendant to retain the unearned portion of the premium, and, at tho same time, resist plaintiff’s right to a decree by its motion to dismiss, after the hill gave defendant full information as to the payment of the premium, and the circumstances attending it. Concordia Fire Ins. Co. v. Sudduth (C. C. A.) 4 F.(2d) 525; Home Ins. Co. v. Hightower (C. C. A.) 22 F.(2d) 883; Malo v. Insurance Co. (Mo. App.) 282 S. W. 78; Mechanics’ & Traders’ Ins. Co. v. Smith, 79 Miss. 142, 30 So. 362.
The plaintiff was entitled to the relief asked in the bill of complaint and accorded him by the decree of the District Court, and its decree is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_casetyp1_7-2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
RAINES v. LIGON et al.
Circuit Court of Appeals, Tenth Circuit.
January 15, 1930.
No. 109.
Wellington L. Merwine, of Okmulgee, Okl., for appellant.
Y. R. Biggers, of Wewoka, Okl. (Biggers, Wilson & Aldridge, Pryor & Stokes, and A. M. Fowler, all of Wewoka, Okl., on the brief), for appellees Ligón, Mainard, Gamer, Brixey, and Casey.
0. Dale Wolfe and W. M. Haulsee, both of Wewoka, Okl., for appellee Mathis.
Before LEWIS, PHILLIPS and MeDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a suit in equity brought by Maceo Raines to cancel: (1) A warranty deed running from plaintiff and N. H. Raines, her husband, to J. A. ligón, conveying 120 acres of land in Seminole county, Oklahoma; (2) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein, from Ligón to W. E. Casey, J. D. Gamer, Mabel Gamer, Herman Shepard and J. L. Mainard; and (3) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein from Shepard to J. F. Remy and 0. Brixey.
The complaint alleged that the plaintiff is a resident of Springfield, Tennessee; that she had employed one J. A. Burrows, of lima, Oklahoma, as her agent, to sell such tract of land; that, on March 5,1926, an oil well was being drilled in the vicinity of such land; that such well was then producing some oil and gas and was giving indications that it would eome in as a commercial well; that plaintiff had no knowledge of the oil and gas development in the vicinity of such land; that, on March 5, 1926, the above named grantees, with the knowledge that Burrows was plaintiff’s agent, induced Burrows to go to Springfield and negotiate with plaintiff for the conveyance of such land to them for $10,-5Ó0; that such amount was a grossly inadequate consideration; that such grantees, in order to induce Burrows to violate his trust, agreed to pay him a large sum of money, as commission for his services, and to pay his traveling expenses from his home in Oklahoma to Springfield and return; that, pursuant to such agreement with such grantees, Burrows went to Springfield, advised plaintiff to sell such land for $10,500, induced her to execute and deliver a deed for such land to J. A. ligón and concealed from her the fact of the drilling of such well and of the increased value of such land on account thereof.
The complaint further alleged such conveyances of the oil, gas and other mineral rights in such land and that such grantees took such conveyances with the knowledge that Ligón had procured such deed to the land by fraud and deceit.
The complaint tendered a restoration of the amount paid for such land and prayed for cancellation of such deeds and conveyances.
Ligón filed an answer denying specifically the allegations of fraud and alleged that Burrows, as agent for the plaintiff, approached him on March 5,1926, and offered to sell such land to him; that he agreed to buy the land for $15,000; that Burrows thereupon went to the home of plaintiff and procured the deed; that such deed, with sight draft for $10,500 attached, was forwarded to the Farmers’ National Bank at Wewoka, Oklahoma; that plaintiff appeared in person at the bank, on the day the draft was presented to Ligón, and directed the bank not to deliver the deed until further notice from her; that plaintiff then entered into negotiations with Ligón for the sale of the land; that such negotiations eontinued for about fifteen days; that during such period plaintiff was in the immediate vicinity of the land and knew of the oil development near the land; that, as a result of such negotiations, plaintiff sold the land to Ligón for $15,000; that such sum was the reasonable market value of the land.
Each of the other grantees filed separate answers denying the allegations of fraud and alleging that they were bona fide purchasers for a valuable consideration, without notice of such alleged fraud. '
The evidence showed the following facts: Plaintiff was a Negro woman, twenty-five years of age. She resided with her husband, N. H. Raines, a negro physician, in Springfield, Tennessee. Plaintiff employed Burrows, a negro school teacher, who lived in the immediate vicinity of the land, to act as her agent in the sale of the land and authorized him to sell the land for $10,000 cash or $12,-000 — one-third cash and the balance in deferred payments. Burrows was to receive, as his commission, any amount he could sell the land for in excess of the prices above stated. On March 6, 1926, Burrows approached J. L. Mainard, who was acting for himself, Ligón, M. F. Mainard and E. C. Aldridge, and agreed to sell the land to them for $14,000. A deed, reciting a consideration of $10,500, running to Ligón, as grantee, was prepared and delivered to Burrows. J. L. Mainard instructed Burrows to proceed to plaintiff’s home and consummate the transaction at once before some one telegraphed a fabulous offer to plaintiff. Burrows immediately left Wewoka for Springfield and arrived there on March 8, 1926. He remained there one day discussing the trade with plaintiff and her husband. He represented to them that the oil prospects were not promising; that it might be five or six years before there would be any oil development, and that the oil and gas rights were worth only from $25 to $40 per acre, since there was no oil well being drilled near plaintiff’s land. Burrows left Springfield the evening of March 8, 1926, and returned to Wewoka. On March 11, 1926, plaintiff and her husband executed the deed and forwarded it, with a sight draft for $10,-500 attached, through a Springfield bank to the Farmers’ National Bank, together with instructions to deliver the deed upon payment of the draft. While Burrows was in Springfield, Chas. B. Williams approached J. L. Mainard and said that he had a better offer for the land; that he would wire Burrows to cancel the trade unless Mainard would raise the price $1,000. Mainard assented to this demand and agreed to pay $15,000 for the land. On March 11th, 1926, Burrows and Williams entered into a written contract with Ligón. This contract provided that Williams and Burrows should procure a warranty deed for the land from plaintiff and her husband to Ligón and cause it to be delivered, with sight draft attached for $10,500, to the Farmers’ National Bank; that Ligón should deposit $4,500 in the Security Bank of Wewoka; that the Security Bank should pay to Williams and Burrows the sum of $4,500 upon approval of the title to the land. On March 13, 1926, the plaintiff, having received information from Burrows that some question was being raised about the title to the land, left immediately for Lima, Oklahoma, where her uncle, G. V. Gross, lived, for the purpose of clearing the title to such land. Plaintiff arrived at Lima about March 15, '1926. She agreed with J. L. Mainard, who represented Ligón, M. F. Mainard and Aldridge, to have the Springfield bank reduce the draft from $10,500 to $9,000 and that the sum of $1,500 should be used in remedying the defects in the title to the land. J. L. Mainard and his associates paid the draft, after its reduction to $9,000. After some attempts to clear the title to the land, a further contract was entered into on March 25,1926, by which it was agreed that Burrows and Williams should receive $3,500 instead of $4,500; that plaintiff should refund $2,000 of the consideration received by her; that plaintiff should be released from the warranty contained in her deed; and that Burrows and Williams should be released from any claims against them under the contract of March 11. This contract was carried out. The terms of this contract were proposed by Burrows, Williams and plaintiff and the contract was prepared by their lawyer. Plaintiff then returned to Springfield.
Apparently the alleged defects in the title were substantial, because, at the time of the trial of this cause, three lawsuits were pending against Ligón and the other purchasers, by persons who claimed to own interests in the land.
In the latter part of February and the early part of March, 1926, an oil and gas well was being drilled approximately a mile and a quarter north of the tract of land in question. The producing sand was reached at a depthl of 3,982 feet, about February 28, 1926, and the well on that date produced at the rate of 95 barrels of oil per day. It was drilled further into the sand and, on March 6th, at a depth of 4,009 feet the well produced at the rate of 489 barrels of oil per day. The well was completed on March 12th at a depth of 4,012 feet and produced at the rate of 995 barrels of oil per day. .
During the time that plaintiff was in Oklahoma, she was in the vicinity of the land in question and this oil well, and the defendants in no wise concealed from her the drilling of such well and the increased value of the land on account thereof.
The trial court found the issues in favor of the defendants below and entered its decree denying plaintiff any relief. Plaintiff has appealed.
Fraud must he established by clear, satisfactory and convincing evidence. Lalone v. United States, 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed. 425; In re Locust Bldg. Co. (C. C. A. 2) 299 F. 756, 765, 766; United States v. Bucher (C. C. A. 8) 15 F.(2d) 783, 785; United States v. Hays (C. C. A. 10) 35 F.(2d) 948.
£2] When a court of equity has considered conflicting evidence and has made its findings and decree thereon, such findings and decree are presumptively correct and will not be disturbed, in the absence of a serious mistake in the consideration of the evidence or an obvious error in the application of the law thereto. Fienup v. Kleinman (C. C. A.) 5 F.(2d) 137, 141; State of Iowa v. Carr (C. C. A. 8) 191 F. 257, 263; New York L. I. Co. v. Griffith, Adm’r (C. C. A. 10) 35 F.(2d) 945; Youngblood v. Magnolia Petroleum Co. (C. C. A. 10) 35 F.(2d) 578, 579.
The evidence tended to establish that the agent, Burrows, was unfaithful to his trust, but it failed to establish, with the degree of certainty required, that the purchasers of such laud and mineral rights either participated in or had knowledge of any such fraud.
It does not appear that the trial court made any serious mistake in the consideration, of the evidence or any obvious error in the application of the law to the facts.
The decree is affirmed at plaintiff’s costs.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_circuit
|
J
|
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.
L. L. STROUD and John A. Gillies, Appellants, v. B-W ACCEPTANCE CORPORATION, Appellee.
No. 8560.
United States Court of Appeals Tenth Circuit.
Jan. 25, 1967.
William Hedges Robinson, Jr., Denver, Colo. (Robinson, Tilton & Robinson, Denver, Colo., with him on the brief), for appellants.
Paul S. Goldman, Denver, Colo. (Henry & Adams, Denver, Colo., with him on the brief), for appellee.
Before PICKETT and SETH, Circuit Judges, and STANLEY, District Judge.
SETH, Circuit Judge.
After trial to the court, judgment was entered against the appellants, defendants below, for $334,277.64, plus attorney’s fees of $10,000.00. The appellants have taken this appeal. The facts may be summarized briefly as follows:
The appellants were sole shareholders in the Medalion Apartment Hotel, Inc. (hereinafter Medalion). Medalion built and operated an apartment hotel in Colorado Springs, Colorado, and the first tenants, some of whom were business firms, apparently took possession in early 1962. It appears that Medalion’s apartments were of the “luxury” type, and that established rental charges were approximately fifty per cent higher than for existing facilities in Colorado Springs. Medalion contracted with the York Corporation (hereinafter York) for the purchase and installation of air conditioning and heating equipment in the building. Medalion also purchased kitchen appliances for the building from Allied Appliances, Inc. (hereinafter Allied). Medalion secured payment for the heating and air conditioning equipment by executing a chattel mortgage to York in the sum of $309,-324.77, of which $223,421.36 is shown as the “cash selling price” and $85,-903.41 is shown as the “credit service charge.” Medalion executed a similar chattel mortgage on the kitchen appliances to Allied for the sum of $39,-756.70, of which $28,705.20 is shown as the “cash selling price” and $11,051.50 is shown as the “credit service charge.” Medalion also executed promissory notes in conjunction with the foregoing chattel mortgages by which it agreed to pay the total of each chattel mortgage, i. e., the sum of “cash selling price” and “credit service charge,” in equal monthly installments for seven years, the first installments being due on December 15, 1962.
Shortly after the foregoing chattel mortgages and promissory notes were executed they were all assigned to the appellee, B-W Acceptance Corporation, plaintiff below (hereinafter B-W). B-W and York are both subsidiaries of Borg-Warner Corporation. By appropriate instruments, the appellants each personally guaranteed payment of the chattel mortgages and promissory notes. Each guaranty agreement provided that the guarantor should pay fifteen per cent of the obligations so guaranteed as attorney’s fees if collection were necessary. The total face amount of the chattel mortgages and promissory notes was $349,081.47, and it appears that Medalion had paid $14,803.83 before suit was brought by the appellee. The record discloses that Medalion’s apartment hotel was placed in receivership for the benefit of creditors in March 1965.
Upon its findings that Medalion was indebted to the appellee for the balance due on the two promissory notes, and that the individual appellants were similarly liable under the guaranty agreements, the District Court concluded that the appellee should have a several and joint judgment against Medalion and the appellants for $334,277.64, and that the appellee have a several judgment against each appellant for $5,000.00 for attorney’s fees, as provided in the guaranty agreements.
Failure of consideration was the sole defense raised by the appellants in their initial pleadings to the appellee’s suit on the promissory notes and guaranty agreements. The appellants in these pleadings claimed they were relieved of their obligations because York had breached its contract relative to installation and performance of the heating and air conditioning equipment, which was the consideration for the larger of the two chattel mortgages and promissory notes. The appellants alleged the equipment was improperly installed and operated unsatisfactorily, thus causing tenants to complain, move out of the building, or move from higher rent “corner apartments” to less expensive apartments. The appellants also alleged that the appellee was not a holder in due course and that any defenses they might assert against York could be asserted against the appellee B-W because both were subsidiaries of Borg-Warner Corporation.
The record discloses that the pretrial conference resulted in an order which framed the contested issues as York’s alleged breach of contract and the status of the appellee as a holder in due course. The record before us on appeal reveals that the trial proceeded along the lines established in the pretrial conference; the appellee offered evidence showing that any persistent difficulties with the heating and air conditioning equipment, after an initial “shake down” period, were due to the design of the building, and not to improper installation or operation of the equipment. The appellants offered evidence showing that the building was either too hot or too cold, that air in the apartments failed to circulate and became stale and close, that tenants complained, and that the building developed a bad reputation in Colorado Springs because of the heating and cooling difficulties.
The District Court found that Medalion had at no time intended or attempted to rescind the contract with York; that there was little difficulty with the heating and cooling systems after 1963; that considerable work was done by York to make the heating and cooling systems operate efficiently; that the York equipment was still in use in the building; and that the receiver had rented the building except for certain apartments withheld for the summer trade in Colorado Springs. Although the findings and conclusions of the District Court do not expressly state that York had fulfilled its contract, the conclusion to be reached from the foregoing findings is that York did not breach its contract with Medalion. The record before us reveals substantial evidence supporting the trial court’s findings, and the findings support the conclusion that York did not breach its contract with Medalion. The appellee’s status as a holder in due course is of no importance if the initial defense asserted against York, as assignor or transferor, is not good. The District Court therefore found the appellants liable for the balance due on the promissory notes in accordance with their guaranty agreements.
It further appears that some time during the course of the trial the appellants submitted an additional pleading asserting a new defense that the appellee was in the business of making loans of money or personal credit upon security, and had charged interest greater than that permitted by the statutes of Colorado. The District Court concluded that the Colorado statutes did not prevent the appellee from enforcing the appellants’ obligations but gave no particulars. The record before us reveals no evidence whatever bearing on the issues of whether the appellee or York were “lenders” within the Colorado statutes, whether they were or were not licensed, or whether the transactions in question were covered by the Colorado statutes. Insofar as the record shows, the appellants interposed an alternative defense but failed to offer any evidence from which the trial court could make findings and conclusions. It would thus appear that the appellants cannot now complain of the trial court’s judgment when it was their burden to go forward with the evidence relating to the defense of excessive interest. See 91 C.J.S. Usury § 114; Gilbert v. Hudgens, 92 Colo. 571, 22 P.2d 858 (1933).
The appellants also urge that the District Court erred by awarding judgment for the full balance due on the promissory notes. The promissory notes do not reveal that the total face amounts are the sums of “cash selling price” and “credit service charge,” as shown by the chattel mortgages, which were also introduced in evidence. The appellants have presented several alternative computations purporting to show that the judgment awarded is excessive because the District Court made no allowance for unearned interest. These computations are in some instances related to various Colorado statutes. However, it appears that the appellee’s cause of action was on the promissory notes and the guaranty agreements. The appellants have referred us to no authority wherein judgment for the balance of the face amount of a defaulted promissory note was reduced by unearned interest, as computed from the terms of an underlying chattel mortgage, nor does the record disclose that such an argument was presented to the trial court prior to its judgment. It does not appear that the appellants referred the trial court to any Colorado cases or statutes, or to any authority whatever, for the proposition that the “credit service charge” integrated into the total face amount of the two promissory notes should be subtracted pro rata from the balance due on the notes. In our view the appellants’ arguments on appeal, unsupported by authority, are a belated effort to retry the case at the appellate level on theories not presented to the trial court. See First National Bank of Dodge City, Kansas v. Persch-bacher, 335 F.2d 442 (10th Cir.).
It seems clear that the District Court awarded judgment for the unpaid balance of the promissory notes without being asked to inquire into their origin to determine the character of the obligations they represented It was the responsibility of the appellants to come forward during trial with arguments and authorities demonstrating that a judgment for the unpaid balance of the promissory notes would be incorrect under the circumstances of the case at bar. This the appellants failed to do. The trial court properly entered judgment for the unpaid balance of the promissory notes.
Two additional issues are raised by the appellants. It is urged that the District Court erred by awarding $10,-000.00 attorney’s fees because such fees were not expressly included in the ap-pellee’s prayer. The written agreement between the appellee and its counsel, disclosing a fee of $10,000.00, was admitted in evidence. The guaranty agreements executed by the appellants, also admitted in evidence, provide that the guarantors “shall pay 15% of the amount” as attorney’s fees. The evidence established that the appellee was entitled to recover attorney’s fees under the guaranty agreements. It was not error to award such fees even though they were not included in the appellee’s ad damnum clause. See Rule 54(c), Fed.R.Civ.P.; Couto v. United Fruit Co., 203 F.2d 456 (2d Cir.); Collins v. Government of Virgin Islands, 236 F.Supp. 441 (D.V.I.).
The final issue raised by the appellants is that it was error for the District Court to permit the appellee’s witness Willman to testify in rebuttal. The appellants objected to Willman’s testimony on the ground that he had not been endorsed as a witness, nor were the appellants advised that Willman would be called in accordance with the pretrial order, which required counsel to notify the opposing party at least twenty days in advance of the name and address of the witness and the general subject matter of his testimony. In view of the issues framed in the pretrial conference, it does appear that the need for Will-man’s testimony could have been anticipated by counsel for the appellee, and that counsel for the appellants could have been notified. However, the trial judge, who was not the same judge that presided at the pretrial conference, expressed some concern about the issues being tried and permitted the witness to testify over the appellants’ objection. Although the appellants were not notified that Willman might be called as a witness, we believe the decision was a matter within the sound discretion of the trial court, and there was no error.
Affirmed.
. The record discloses that no issues were raised at trial regarding Medalion’s contract with Allied for the kitchen appliances.
Question: 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_genresp2
|
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.
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.
Murphy JENKINS, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 22593.
United States Court of Appeals Fifth Circuit.
July 8, 1966.
E. V. Boagni, Asst. U. S. Atty., Shreveport, La., for appellee.
Before TUTTLE, Chief Judge, and BROWN and COLEMAN, Circuit Judges.
PER CURIAM:
Appellant moved to vacate sentence under 28 U.S.C.A. § 2255, alleging that he was improperly sentenced for two offenses, when in fact only one offense was involved. The offenses charged, and for which Appellant is now serving consecutive sentences, were (1) stealing a letter from an authorized mail receptacle; and (2) abstracting from the same letter a Louisiana welfare check, 18 U.S.C.A. § 1708. The District Court held that these constituted two separate and distinct offenses and therefore supported two separate sentences. We agree and affirm. Poffenbarger v. Aderhold, 5 Cir., 1933, 67 F.2d 250, cert. denied, 1934, 290 U.S. 703, 54 S.Ct. 375, 78 L.Ed. 604, following Poffenbarger v. United States, 8 Cir., 1927, 20 F.2d 42; Kinsella v. Looney, 10 Cir., 1954, 217 F.2d 445; see United States v. Gumbs, 2 Cir., 1957, 246 F.2d 441; cf. Wilburn v. United States, 5 Cir., 1964, 326 F.2d 903; Tesciona v. Hunter, 10 Cir., 1945, 151 F.2d 589.
Affirmed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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".
DOYLE et al. v. UNITED STATES.
Circuit Court of Appeals, Eighth Circuit.
May 31, 1929.
No. 8071.
Jobo. T. Harley, of Tulsa, Okl., for plaintiffs in error.
W. B.'Blair, Asst. U. S. Atty., of Tulsa, Okl. (John M. Goldesberry, U. S. Atty., and Harry Seaton, Asst. U. S. Atty., both of Tulsa, Okl., on tbe brief), for the United States.
Before STONE,- Circuit Judge, and FARIS and SYMES, District Judges.
SYMES, District Judge.
Tbe plaintiffs in error, hereafter called defendants, were indicted and convicted in the Northern district of Oklahoma. The first count of the indictment charged a conspiracy to possess liquor unlawfully within the limits of the Indian Territory, and sets out five overt acts. The second to sixth counts of the indictment made substantive offenses of sale or possession out of the overt acts.
Both defendants were acquitted1 on the conspiracy count. Doyle was convicted upon the second count, to wit, possession, the third count, sale, the fourth count, possession, and the fifth count, sale'; but acquitted on the sixth count, possession. Kimes was found not guilty on all counts except the sixth, possession.
Counsel for plaintiffs in error advance three reasons for reversal: First, that the court erred in admitting the evidence of offenses other than those charged in the indictment, citing cases to the proposition that evidence of offenses distinct from those charged is not competent. The testimony disclosed numerous sales and acts of possession within a comparatively short space of time; that is, between the 12th and 20th of August, 1925,' inclusive.
The government agents bought liquor on the dates in question on certain premises where a saloon seems to have been conducted by the defendant Doyle. The particular evidence objected to was, that on August 18th two of the government officers crossed -the state line in the immediate neighborhood of the premises, 30 steps away, and found several jugs hidden, which they said had recently contained whisky, as evidenced by the odor, and also picked up a gunny-sack containing several bottles of whisky; that the place where these articles were found was connected by a well-beaten path with the premises of the defendant, where the offenses occurred.
Three cases in this circuit — McMillan v. U. S. (C. C. A.) 27 F.(2d) 94; Anderson v. U. S. (C. C. A.) 18 F.(2d) 404, and Cook v. U. S. (C. C. A.) 14 F.(2d) 833 — have passed on this question. They hold that evidence of distinct offenses, independent of those charged in the indictment or information, is competent only where intent is an essential ingredient of the crime charged, except where they are so related to the main issue, or are part of the surrounding circumstances in respeet to time and character, as to aid in its solution, and that considerable discretion is allowed the trial judge in deciding whether such evidence tends in some degree, at least, to corroborate the other evidence. See, also, generally, U. S. v. Anderson (C. C. A.) 31 F.(2d) 436.
Moreover, on a conspiracy charge, the government is not confined to the overt acts actually pleaded, but may show other transactions of a similar nature occurring at the time charged. Another rule material here is that evidence of possession of liquor on or about the date, and in the immediate neighborhood of the place of sale, is competent in support of a sales count. Petroff v. U. S. (C. C. A.) 13 F.(2d) 453.
The next point is^ advanced in behalf of Kimes, and charges error in the refusal of the court to direct a verdict in.his favor on the sixth count. This defendant was acquitted on all but this one. The evidence on this is, briefly, that when the officers broke in on the day of the raid they found Kimes running from behind the bar with a bottle of whisky in his hand, which he immediately broke by throwing it on the floor. Defendant’s story is that, shortly before the officers broke in, a stranger in the building gave him this bottle; that he did not know what the contents were, but threw it upon the floor and broke it. Clearly this presented an issue of fact for the jury, and their verdict cannot be disturbed.
Under the third point, the defendant Kimes says the court committed reversible error in permitting the government to recall him for further cross-examination when the court recessed, to show that the defendant Doyle gave him $10 in money. The evidence shows that both sides rested at the noon recess; that when the court reconvened at 2:30 the government recalled Kimes for further cross-examination, whereupon he testified that at the time of the crime, and at the times named in the indictment, he had a speaking acquaintance with Doyle for about a year previous, and that that was all the acquaintance he had ever had with him. He then admitted that when court recessed at noon Doyle gave him $10 out in front of the courthouse. This was after he had completed his testimony. Objection to and motion to strike out this evidence was overruled, the court stating that it was permitted only to show the acquaintance and relation existing between the parties.
We are of the opinion that this evidence did not throw any light upon the crime charged, which occurred two years previous to the trial. It should have been excluded. It was immaterial, however, and, if any harm were done the defendant by its admission, it could easily have been corrected by a proper instruction, but none was tendered or requested on this point. Where evidence is introduced, which is liable to be applied to a purpose different from that intended, it is the duty of the court, upon request, to limit the application of the evidence to the purpose for which it is competent. 16 C. J. 854, § 2155. Failure to do so, however, is not error, in the absence of a special request. Moffatt v. U. S., 232 F. 522 (8th C. C. A.); Schultz v. U. S., 200 F. 234 (8th C. C. A.).
On the entire record we are of the opinion that the verdict of the jury was fully justified, and that we are not warranted in setting it aside. Section 269, Judicial Code; USCA tit. 28, § 391.
The conviction and judgment of the lower court is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_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.
Todd PATTERSON, a Minor suing by his father, Edgar PATTERSON v. FEDERAL BUREAU OF INVESTIGATION, John Doe, an unknown employee of the United States Government and John Doe Agency, an unknown agency of the United States Government. Appeal of Todd PATTERSON in Nos. 89-5342 and 89-5781.
Nos. 89-5342, 89-5781.
United States Court of Appeals, Third Circuit.
Argued Nov. 9, 1989.
Decided Jan. 8, 1990.
Rehearing and Rehearing In Banc Denied Feb. 7, 1990.
Frank Askin (argued), Rutgers Constitutional Law, Newark, N.J., for appellant.
Susan C. Cassell, U.S. Attorney’s Office, Newark, N.J., for all appellees.
Douglas Letter (argued), Robert E. Kopp, Dept, of Justice, Civil Div., Washington, D.C., for F.B.I.
Before MANSMANN and GREENBERG, Circuit Judges, and GAWTHROP, District Judge.
Honorable Robert S. Gawthrop, III, of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
MANSMANN, Circuit Judge.
These appeals were born of the ambitious efforts of a sixth grade elementary school student who, in the lawful exercise of his constitutional rights, caused himself to be the subject of an investigation by the Federal Bureau of Investigation (“FBI”). The appeals constitute yet another illustration of the competing need for disclosure of information by government agencies and the need to prevent injury to the national security.
Todd Patterson (“Todd”) appeals from the district court’s orders granting summary judgment to the FBI and denying his post-trial motion filed pursuant to Federal Rule of Civil Procedure 60(b). We hold that the information Todd seeks from the federal agency was properly exempt from disclosure. Therefore, we will affirm the judgment of the district court.
I.
In 1983, Todd, then a sixth grade elementary school student, embarked on a precocious endeavor to write an encyclopedia of the world as part of a school project. Deciding that his school’s resources were inadequate, Todd wrote to 169 countries requesting information. Significantly, Todd enclosed much of this correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd’s parents operated from their home.
The flood of international correspondence engendered by the project attracted the attention of the FBI by means and methods undisclosed by the FBI. In late 1983, an FBI agent appeared unannounced at Todd’s home. The agent spoke to Todd’s parents concerning Todd’s activities and was shown the correspondence received in response to Todd’s requests. Soon after the visit, Todd contacted the FBI agent and spoke with him regarding the school project and the information requests to other countries.
As a result of the school project and the visit by the FBI agent, the FBI came to maintain a file on Todd. The file contained a directive for the FBI’s Newark Division to conduct an appropriate investigation of Laboratory Disposable Products in accordance with Attorney General Guidelines. Also included in the file is a memorandum, prepared on or about February 23, 1984, that changed the subject heading from “Laboratory Disposable Products” to “Todd Patterson.” The memorandum contains a description of Todd’s project and states “Newark indices as well as local criminal checks negative on subject” and “[i]n view of the above, Newark contemplates no further investigation in this matter.” 705 F.Supp. 1033, 1037 (D.N.J.1989).
The FBI maintains that it conducted no further investigation after 1983. However, a document released by the FBI dated December 5, 1985, along with five attachments not released, demonstrate that as of that date some entity of the United States Government continued to monitor Todd’s activities. Todd insists that surveillance remained in effect because he continued to receive pieces of mail in damaged condition. In addition, Todd and his parents report hearing strange background noises on their telephones since 1983.
In April, 1987, Todd requested, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), access to records the F.B.I. in Washington, D.C. might be maintaining on him. Todd was informed that the information he requested was exempt from disclosure under 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552a(j)(2). Todd appealed the denial of his FOIA request to the Department of Justice, Office of Information and Privacy, where the determination was upheld. Thereafter, Todd filed a second FOIA request, this time directed to the FBI’s Newark field Office.
In May 1988, Todd initiated a civil suit against defendants FBI, John Doe (an unknown employee of the United States Government), and John Doe Agency (an unknown agency of the United States Government). Todd sought injunctive relief, damages, and disclosure of the requested documents. The complaint presented three distinct causes of action: (1) failure to comply with FOIA; (2) violations of the Privacy Act; and (3) violations of Todd’s First and Fourth Amendment rights and of 18 U.S.C. § 1702 and 19 U.S.C. § 482, statutes relating to the U.S. Mail.
The FBI responded initially to the complaint by offering to expunge Todd’s name from its records. The offer was never accepted. Thereafter, the FBI filed a motion for summary judgment on the first and second causes of action, reasserting that the requested information was exempt from disclosure. As to the third cause of action, the FBI moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Following oral argument on the motion and in camera review of the withheld documents, the district court granted summary judgment to the FBI on February 7, 1989, on all three causes of action. 705 F.Supp. 1033 (D.N.J. 1989). Todd thereafter filed a motion, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment or in the alternative to supplement the record which was denied by the district court on August 18, 1989. We have jurisdiction to review the grant of a motion for summary judgment and the denial of a Rule 60(b) motion pursuant to 28 U.S.C. § 1291.
II.
A.
Todd challenges the procedures employed by the district court in its adjudication of the alleged FOIA violation. In particular, Todd contends that the record does not justify the district court’s use of an in camera affidavit and its further in camera examination of withheld documents.
In Lame v. United States Dept. of Justice, 654 F.2d 917, 922 (3d Cir.1981), we expressly authorized the use of in camera affidavits and submissions. We noted that in the ordinary case, “a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court.” Lame, at 922.
However, there are cases, albeit unusual, where the preparation of a detailed Vaughn index would require an agency to disclose the very information that it seeks to withhold. Under these circumstances, we require an agency to submit a public affidavit setting forth, in as detailed terms as possible, the basis for the claimed exemption. Lame, 654 F.2d at 921. The district court must strive to make the public record as complete as possible, soliciting as much information as can be willingly released by the agency. If, however, “the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to.” See Ferri v. Bell, 645 F.2d 1213, 1224 (3d Cir.1981), opinion modified, 671 F.2d 769 (3d Cir.1982); Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976). Moreover, to the extent that any public affidavits may appear sufficiently descriptive, it may nonetheless be necessary for the district court to examine the withheld documents in camera to determine whether the agency properly characterized the information as exempt. 5 U.S.C. § 552(a)(4)(B); Lame, 654 F.2d at 921; Ferri, 645 F.2d at 1222; see also Phillippi, 546 F.2d at 1012 (FOIA clearly contemplates that courts will resolve fundamental issues in contested cases on the basis of in camera examination of relevant documents).
We believe the procedural events in the case sub judice are in accord with those procedures outlined above. In seeking discovery from the FBI, Todd propounded interrogatories questioning, inter alia, the internal investigatory procedures of the FBI and the identities of the persons and agencies assigned to Todd’s case. The FBI provided answers to a few of the interrogatories, however, in most instances it claimed exemption from disclosure under the states military secrets privilege and 5 U.S.C. § 552(b)(1) and § 552(b)(7)(C) of the FOIA. In support of its claim of privilege, the FBI submitted the public affidavits of Special Agents Lieberman, Thomas, and Thorton. The purpose of the Thomas affidavit was to provide the district court with a Vaughn index for the records requested by Todd and withheld by the FBI. Lieberman’s affidavit describes the withheld documents and sets forth justifications for those withholdings under the FOIA. Lastly, the Thorton affidavit states that the Patterson premises had never been the subject of electronic surveillance and the FBI was innocent of opening or intercepting any mail directed to the Pattersons.
Ostensibly, the district court found that these affidavits constituted sufficient proof of the privileged nature of the withheld information, for it was not until after oral argument on the FBI’s motion for summary judgment that in camera inspection was ordered. Indeed, the district court’s order directing the ex parte review indicated the following:
because certain issues were raised in oral argument that were not adequately addressed in the supporting papers, I have concluded that in camera inspection of certain withheld documents is required in order for this Court to assure itself that the FBI has acted in good faith with regard to its investigation of Todd Patterson, that the FBI complied with all relevant government regulations, and that the FBI engaged in no illegal conduct.
This in camera review was necessary with respect to only two documents.
The FBI complied with the order by submitting all of the unredacted documents at issue as well as the declaration of James Geer, the FBI Assistant Director in charge of the Intelligence Division. Geer’s declaration was provided as “an explanatory affidavit that goes into more detail than the public affidavits.” The FBI also filed publicly the Declaration and Claim of Privilege of Attorney General Thornburgh so as to assert formally the state secrets privilege.
Thus, the public record consisted of certain redacted documents initially released by the FBI, a few answers to interrogatories, and four affidavits. Not surprisingly, these materials did not allay Todd’s interest in the FBI’s files. Under the circumstances, however, we believe the public submissions represent a good faith effort by the FBI to provide as much access to the information as possible. We can appreciate Todd’s objections to the anomalous situation of having to defend against a motion for summary judgment without being privy to the very documents necessary for such a defense. The Court of Appeals for the D.C. Circuit, which has considered a significant number of FOIA cases, has commented on how this “lack of knowledge by the party seeing [sic] disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824. However, the remedy for the unfairness is an in camera examination by the trial court of the withheld documents and any supporting or explanatory affidavits. Inasmuch as the record was made as complete as possible in this instance, we hold that the proper predicates for accepting records and affidavits in camera were satisfied in this case.
Irrespective of the district court’s in camera review, Todd argues that summary judgment should not have been granted because the FBI failed to sustain its burden to show the sensitive nature of its withheld documents. In reviewing the grant of summary judgment in proceedings seeking disclosure of records under the FOIA, this court’s scope of review is twofold: we must determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Cuccaro v. Secretary of Labor, 770 F.2d 355 (3d Cir.1985); Lame v. United States Dept. of Justice, 767 F.2d 66 (3d Cir.1985).
The FBI invoked two exemptions in support of its denial of Todd’s FOIA request. The first exemption provides that documents which are “specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy,” are exempt from disclosure. 5 U.S.C. § 552(b)(l)(1982). In support of its position, the FBI submitted the Thomas affidavit which identifies the relevant Executive Order in this case as being the Executive Order on National Security Information, No. 12356, 3 C.F.R. 166 (1983). Reviewing the Thomas affidavit in conjunction with Executive Order 12356, the district court found, and we agree, that the FBI adhered to the procedural requirements of the Executive Order when the withheld FOIA material was classified.
Next, the affidavit indicates that the documents sought by Todd contain information made eligible for classification by § 1.3(a)(4) of the Executive Order. Particularly, § 1.3(a)(4) provides that information shall be considered for classification if it concerns “intelligence activities (including special activities), or intelligence sources or methods.” 3 C.F.R. 169. This section must be read in conjunction with § 1.3(b):
Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
Id.
The remainder of the affidavit includes Thomas’ description of the documents, the location of the classified portions, and his assertions that the material satisfies the classification criteria of § 1.3(a)(4) and ultimately presents a threat to the national security. The district court found Thomas’ assertions deficient in only two respects. The district court found his references to Documents No. 4 and 5 to be unduly vague and repetitive. Upon in camera inspection of the material, however, the court was convinced that release of the withheld material reasonably could be expected to cause damage to the national security.
We conducted our own in camera review of the documents and accompanying Geer affidavit, mindful that when dealing with documents to which § 552(b)(1) applies courts are expected to accord “substantial weight” to the agency’s affidavit. See American Friends Serv. Com. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987); see also S.Conf.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6267, 6290. We find that the district court’s decision has an adequate factual basis and even on a plenary review we agree with it.
The second exemption invoked by the FBI was § 552(b)(7)(C), which exempts from disclosure:
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ...
(C) constitute an unwarranted invasion of personal privacy ...
5 U.S.C. § 552(b)(7)(C).
In considering this claim, the district court was required to engage in a de novo balancing test: “weighing the public benefit which would result from the disclosure against the privacy interest and the extent to which it is invaded.” Cuccaro, 770 F.2d at 359. In view of its finding that the FBI had not participated in any illegal conduct, the district court concluded that only a negligible benefit would inure to the public by releasing the names of FBI personnel. As a result of our independent examination of the documents, we find that the district court’s conclusion is correct.
Todd also maintains that the blanket exemption from release of the requested documents and the Geer affidavit was over-broad, and that all segregable, non-sensitive portions of the withheld documents should have been released. Our rule in this circuit is that, in response to a FOIA request, “[a]ny reasonably segregable, nonexempt portion of a record is to be made available to the person requesting that record.” Lame, 654 F.2d at 921. In this case, the FBI did release certain papers in which extensive redaction was necessary. Those documents completely withheld were simply inappropriate for partial redaction, except in one instance. The Geer affidavit contains some non-classified portions which could have been disclosed. Responding to questions propounded by this court at oral argument, the FBI admitted that the entire Geer affidavit need not have been withheld. However, the FBI explained that the non-classified parts of that document were available to Todd and disclosure would be made upon request. We are not convinced that earlier disclosure of these non-classified parts would have affected the outcome of the case. Future disclosure will at least assuage some of Todd’s curiosity.
B.
Todd argues that the FBI violated his rights under the Privacy Act, 5 U.S.C. § 552a(e)(7) by collecting information about his protected correspondence with foreign governments and by maintaining records of his protected activity in permanent, retrievable files indexed to his name. The FBI counters with the assertion that under § 552a(e)(7) of the Act the requested records are exempt from disclosure. Concluding that the records were entitled to exemption, the district court granted the FBI summary judgment on the second cause of action of Todd’s complaint.
Our scope of review of the district court’s determination with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized initially by the district court. We must decide whether there exists a genuine issue as to any material fact in dispute, assuming resolution of any disputed fact in favor of the party opposing the motion, and determine whether the moving party is entitled to judgment as a matter of law. Cuccaro, 770 F.2d at 357.
Initially, and as a question of first impression in this circuit, we must interpret the meaning of a portion of § 552a(e)(7). Section 552a(e)(7) prohibits federal agencies from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7) (emphasis added). The precise meaning of the emphasized portion is not defined by the statute itself. The district court compared the decisions of other circuits which have interpreted this particular section and adopted a rule requiring agencies “to demonstrate that any and all records maintained on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency, and that there exists a sufficient basis for the maintenance of such records.” 705 F.Supp. at 1043 (emphasis in original). It is this definition that the parties now dispute. Todd argues that agencies should be made to show a “substantial relationship” between the records and the government activity. He insists that a “relevancy” standard acts to dilute his First Amendment rights.
Congress’s intent, as revealed in the statute’s legislative history, is for § 552a(e)(7) to prevent “collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6916, 6971. The history also instructs:
that the kind of information about individuals which an agency seeks to gather or solicit, and the criteria for programs to investigate individuals will be judged by an official at the highest policy making level to be relevant and necessary to a statutory purpose of the agency.
1974 U.S.Code Cong. & Admin.News 6916, 6960 (emphasis added).
Only four courts of appeals have expressed an opinion as to the standard warranted when evaluating a claim under § 552a(e)(7). The Court of Appeals for the Fourth Circuit has held that Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ...” Clarkson v. I.R.S., 678 F.2d 1368, 1375 (11th Cir.1982), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 533 (1987). A case-by-case analysis of whether an agency’s actions were pertinent to authorized law enforcement activity was adopted by the court in MacPherson v. I.R.S., 803 F.2d 479 (9th Cir. 1986). Section (e)(7) was interpreted by the Sixth Circuit as allowing “investigation with respect to the exercise of first amendment rights if such investigation is relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.” Jabara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983) (emphasis added). The Jabara standard was adopted in Nagel v. U.S. Dept. of Health, Education and Welfare, 725 F.2d 1438, 1441 n. 3 (D.C.Cir.1984).
In our view, a relevancy standard is more consistent with Congress’s intent and will prove to be a more manageable standard than employing one based on ad-hoc review. The weight of authority supports a rule requiring a federal agency to establish some nexus between its files and classified activities. A burden as heavy as that suggested by Todd has never been imposed. We, therefore, hold that a federal agency defending its maintenance of records under Section (e)(7) must demonstrate that its records on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency. Thus, the district court’s interpretation of the section was legally correct.
Applying this standard to the FBI’s records, especially the Geer affidavit, we are persuaded, as was the district court, that the records maintained by the FBI on Todd’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the FBI. Continued maintenance of such records also will not violate any provision of the Privacy Act. Accordingly, with no issue of material fact to resolve, the district court properly entered summary judgment.
C.
The FBI filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) as to Todd’s third cause of action, arguing that in actions instituted in federal court under federal law, courts have eliminated fictitious defendants by motion. In his motion in opposition to the summary judgment motion, Todd maintained that pleading fictitious defendants was allowable until such time as the real parties in interest, who could only be identified through further discovery, could be substituted. The district court found, as a matter of fact, that the FBI and any FBI or other government employees involved in activities concerning Todd had acted in accord with all applicable statutory, regulatory, and administrative guidelines. Further, the district court held that the FBI had properly invoked the state secrets privilege in defense to Todd’s interrogatories. Because these findings were made by considering matters outside the pleadings, i.e., documents submitted for in camera review, the district court converted the motion to dismiss into one for summary judgment, as is authorized for Rule 12(b)(6) motions, and entered judgment in favor of the FBI. Todd contends that in treating the Rule 12(b)(2) motion as one for summary judgment, the district court denied him the opportunity to properly defend his position on the merits. The FBI concedes procedural error but insists that it is “plainly harmless.”
We have had occasion to consider the procedural distinction between a Rule 12(b)(6) motion and a Rule 12(b)(2) motion. In Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984), we explained the mechanics of a Rule 12(b)(2) motion as follows:
A Rule 12(b)(2) motion, such as the motion made by the defendants here, is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Contrary to the dissent’s suggestion, therefore, at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. See International Ass’n of Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700 (3d Cir.1982). Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.
Time Share Vacation Club, 735 F.2d at 67 n. 9.
In support of its motion, the FBI submitted the Thorton, Thomas and Lieberman affidavits and its answers to interrogatories. Following oral argument on the motion, the FBI produced the Geer affidavit and the total collection of withheld documents. These materials, they contended, clearly evidenced the nonparticipation of the FBI in any mail cover activity. To the extent that the materials revealed the identities of another agency or agencies whose operations concerned Todd’s mailings, the FBI asserted the state secrets privilege to prevent disclosure. Todd’s case consisted of the affidavits of himself and his mother asserting that he had received damaged mail.
A careful reading of the district court’s opinion suggests that the court by implication decided that an action could at least be initiated against a John Doe defendant. Such a determination, however, begs the question whether Todd could receive any further meaningful discovery, so as to ultimately identify the real parties in interest, in light of the FBI’s assertion of the state secrets privilege. Finding that “a ‘reasonable danger’ that harm to the national interest will ensue if defendants are forced to comply with plaintiff’s discovery requests,” the district court held that the state secrets privilege had been properly invoked. 705 F.Supp. 1046. The district court then reasoned that if the record contained no evidence of abuse by the FBI, and the privilege applied to other information known to the FBI, then the case presented no issue of material fact and should be dismissed accordingly.
A Rule 12(b)(2) motion cannot be treated as one for summary judgment. There are situations, however, where “the question of the district court’s jurisdiction [is] entwined with the ultimate question on the merits.” International Ass’n of Machinists v. Northwest Airlines, 673 F.2d 700, 710 (3d Cir.1982). In such circumstances, it may be necessary for the district court “to proceed to a decision which impacts on the merits.” Id.; see also Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947) (district court had jurisdiction to determine its jurisdiction by proceeding to a decision on the merits).
The facts of this case present this type of complicated review. At the time the Rule 12(b)(2) motion was filed, Todd had already received certain redacted papers, three affidavits and answers to interrogatories. After in camera review of the withheld documents, the district court concluded that Todd could not secure any further discovery. The John Doe defendants would thus remain unknown. Since the suit could not be maintained against a fictitious party, the district lacked in personam jurisdiction.
We find it insignificant that the district court treated the Rule 12(b)(2) motion as one for summary judgment and dismissed the cause of action for lack of a genuine issue of material fact. Such a finding is beyond the initial and necessary inquiry of whether in personam jurisdiction actually lies. The FBI’s evidence, both public and in camera materials, convinces us that (1) the FBI is not one of the John Doe defendants, and (2) the FBI is shielded from further disclosure by the state secrets privilege. Todd thus failed to sustain his burden of proof in establishing in personam jurisdiction. Accordingly, the cause of action was properly dismissed.
D.
An order denying a motion for relief from judgment pursuant to Fed.R.Civ.P. 60 is reviewed for abuse of discretion. Lasky v. Continental Products Corp., 804 F.2d 250 (3d Cir.1986). In view of the facts of this case, we find no evidence that the district court abused its discretion in denying Todd’s Rule 60(b) motion.
III.
For the foregoing reasons, we will affirm the judgment of the district court in both appeals.
. The appeals, filed separately from each order, were consolidated for disposition by order of the Clerk.
. The parties dispute the actual number of files. It is clear from the record that at least one file was created. Todd, however, insists that at least six files exist. This was also the district court’s conclusion.
. Todd subsequently received an invitation from the Soviet Mission in New York to visit their facility, which he did after voluntarily contacting the FBI. He was requested to and did contact the FBI following his visit.
. FOIA requests made to the FBI are limited to files maintained at either the FBI headquarters or the individual field office where the request is made. Appellee's brief at 27.
. The FBI indicated at oral argument that the offer remained open. Todd's position, voiced by his attorney, was that he was unwilling to accept the offer without first reviewing the documents.
. Because it had considered matters outside the pleading, the district court considered the motion to dismiss the third cause of action as one for summary judgment. See infra part II.C.
. A Vaughn index is an affidavit which supplies an index of withheld documents and details the agency’s justification for claiming exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
. The state secrets privilege was first recognized in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). As explained by the Court,
[i]t may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
345 U.S. at 10, 73 S.Ct. at 533.
. We note that notwithstanding this imbalance between the parties, the D.C. Circuit, as well as other circuits, have allowed the use of in camera affidavits in national security cases. See e.g., Molerio v. F.B.I., 749 F.2d 815 (D.C.Cir. 1984); Fitzgerald v. Penthouse Intern., Ltd., 776 F.2d 1236 (4th Cir.1985); Jahara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983); and Hayden v. N.S.A., 608 F.2d 1381 (D.C.Cir. 1979).
. On the basis of our in camera review of the documents we have no hesitation in stating that there is nothing derogatory in them regarding
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
HOSPITAL MORTGAGE GROUP, INC., Plaintiff, Appellee, v. PARQUE INDUSTRIAL RIO CANAS, INC., Defendant, Appellant.
No. 80-1709.
United States Court of Appeals, First Circuit.
Argued May 6, 1981.
Decided July 9, 1981.
Wilfredo Segarra Miranda, Bayamon, P. R., with whom Harry A. Ezratty, San Juan, P. R., was on brief, for defendant, appellant.
Abelardo Ruiz-Suria, San Juan, P. R., with whom McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, and M. Del Valle Montalvo, San Juan, P. R., were on brief, for plaintiff, appellee.
Before GIBSON, Senior Circuit Judge, CAMPBELL and BOWNES, Circuit Judges.
Of the Eighth Circuit, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
Hospital Mortgage Group, Inc., a Delaware corporation, brought an action in federal district court to foreclose its mortgage on property of Parque Industrial Rio Canas, Inc., a real estate development company in Puerto Rico. After attempting unsuccessfully to serve its complaint on Parque, Hospital Mortgage moved for service by publication under Rule 4.5 of the Rules of Civil Procedure of Puerto Rico, as authorized by Rule 4(e) of the Federal Rules of Civil Procedure. Hospital supported its motion with two affidavits, one by its attorney attesting to the merits of the claim, and the other by the process server relating its efforts to locate Parque. The district court granted the motion, and service .was accomplished in accordance with Rule 4.5 through the publication of an edict and mailing a copy of the summons and complaint to Parque’s last known address. Parque failed to answer, and default was entered. After a hearing at which Hospital presented testimony in support of its complaint and Parque did not appear, the court issued a default judgment against Parque and ordered that the property be seized and sold at public auction to satisfy the judgment. The sale was scheduled for September 16, 1980, and notice of the sale was published.
On September 15, 1980, Parque filed a “Motion for Special Appearance to Impugn Jurisdiction and Requesting Postponement of Scheduled Auction.” Parque asserted the judgment was void for lack of jurisdiction, since proper service on Parque had never been accomplished. Parque argued that service could and should have been made either on its president, whose address was personally known to an officer of Hospital and to Hospital’s attorney, or on its newly appointed resident agent, whose address would appear in the files of the Department of State of Puerto Rico. A hearing was held, after which the district court concluded that Hospital had attempted service at the address of Parque’s resident agent as it appeared in the files of the Department of State, that Hospital’s efforts to serve Parque were sufficiently diligent to comply with Rule 4.5, and that the court obtained jurisdiction through service by publication. The court denied Parque’s motion as well as its later motion for reconsideration.
On appeal, Parque reiterates that Hospital’s efforts to serve Parque were insufficiently diligent. Parque also cites Mundo v. Fuster, 87 P.R.R. 343 (1963), for the related contention that the affidavit of the process server was insufficiently specific. We reject both these claims. The affidavit of the process server was more specific than that in Mundo, and the district court could consider that this defendant, unlike the Mundo defendants, is a corporation with the duty to make its address known to the public by maintaining an accurate record with the Department of State. Having failed to keep its public records up to date, Parque is in no position to complain that Hospital relied on the Commonwealth’s outdated records rather than conducting and relating an extensive investigation or drawing on personal knowledge of its officers regarding the residence of Parque’s president.
Having rejected these claims, however, we are faced with a further and far more troublesome argument which Parque first advanced during this appeal. Parque contends, relying on O’Sheaf v. District Court, 38 P.R.R. 231 (1928) and cases cited therein, that Hospital’s affidavit of the merits of its claim did not comply with the requirements of Rule 4.5 in that the affidavit did not set forth facts showing the merit of the claim. Ordinarily, we would not consider an argument made for the first time on appeal. Here, however, the belated argument is addressed to the court’s jurisdiction — its power to enter the judgment— rather than merely to the correctness of its decision. If Parque’s argument is correct, then service was inadequate, and since Parque has never waived service or submitted itself to the court’s jurisdiction, the judgment is a nullity. Restatement, Judgments, section 8 and comment b, at 46 (1942) (judgment void if there is failure to comply with requirements for exercise of power by court); 4 Moore’s Federal Practice 160.-25[1] at 793 (void judgment is nullity); 160.25[2] at 301 (jurisdiction over parties is prerequisite to valid judgment); see also 11 Wright and Miller, Federal Practice and Procedure § 2862 at 197 (once judgment determined to be void, court must grant relief under Rule 60(b)(4); court has no discretion, and movant need neither show meritorious defense nor comply with time limit.) We therefore think we must consider whether Hospital’s affidavit of merit met the requirements of Rule 4.5 as explicated in Puerto Rico case law.
Rule 4(e) of the Federal Rules provides for service on an absent party “under the circumstances and in the manner prescribed in” a statute or rule of the state in which the court is held. Note 2, supra. Service was proper in this case, therefore, only if it was accomplished in accordance with Puerto Rico Rule 4.5. Under that rule, service by publication may be allowed only if “it appears from such affidavit or from the verified complaint filed that a cause of action exists.” Note 1, supra. The Supreme Court of Puerto Rico interpreted this language in O’Sheaf v. District Court, 38 P.R.R. 231 (1928). The court there held inadequate an affidavit by the plaintiff stating that “I have made to my counsel a faithful and exact statement of the facts on which I will base my defense [sic] and that in the opinion of said counsel I have a good and sufficient defense [sic].” The court ruled that “the affidavit ... is fatally defective in not setting forth the facts from which the court could infer that the complainants had a good cause of action.” Id., at 234. The court refused to look to the complaint to supply the necessary factual support, since the complaint in that case, like Hospital’s complaint here, was unsworn; similarly, the court would rely on “the opinion of neither counsel nor the party.”
In the light of O’Sheaf, Hospital’s affidavit of merit is inadequate, since it states only the opinion of counsel and recites no facts to support that opinion. Hospital argues that the complaint should be read into the affidavit, but O’Sheaf expressly prohibits reliance on such an unsworn complaint. Hospital contends that the complaint signed by counsel was effectively verified, since under Federal Rule 11 and the corresponding Puerto Rico rule an attorney’s signature on a pleading constitutes his certification of its truth. This argument proves too much, however; if every complaint signed by counsel is effectively verified, verified complaints have significance only in pro se cases, and the requirement of an affidavit of merit under Rule 4.5 is eliminated whenever a plaintiff is represented by counsel. The Supreme Court of Puerto Rico has not read Rule 4.5 in that way, and we are not at liberty to do so. Hospital’s complaint cannot supply the facts that are missing from its affidavit.
Hospital attempts to distinguish O’Sheaf on the ground that there the affidavit was by the plaintiff, stating counsel’s opinion of his case, while here counsel himself states his own opinion. But the Puerto Rico court has made it clear that the opinion of counsel cannot substitute for a statement of facts supporting the claim. O’Sheaf, 38 P.R.R. at 234; Goldsmith v. Villari, 27 P.R.R. 726 (1919). Hospital points out also that O’Sheaf was a personal action against a Puerto Rico corporation. While these distinctions are relevant to the question of diligence in attempting service, see supra, we do not see their relevance to the requirement of an affidavit of merit, and Hospital offers no theory to assist us. Hospital argues also that the district court’s application of Rule 4.5 on the basis of this affidavit was an exercise of its discretion which should not be disturbed on appeal. But O’Sheaf held that a trial court lacks discretion to apply Rule 4.5 in the absence of a sufficient affidavit, since the affidavit is a prerequisite to the court’s jurisdiction. Id., at 234.
Hospital’s final resort is to policy arguments with which we have some sympathy. Hospital points out that an affidavit by its counsel reiterating the facts pleaded in the complaint filed by the same counsel would be repetitious and that “nothing would have been added to the affidavit that cannot be inferred from the way it was given.” Were we free to do so, we might agree. But we are compelled to apply the law of Puerto Rico as the courts of the Commonwealth would apply it. Hospital has offered nothing to show that the Supreme Court of Puerto Rico has authorized departure from O’Sheaf, or that O’Sheaf is otherwise no longer controlling. Since the affidavit of merit was fatally inadequate under controlling law, we are constrained to hold that the district court lacked jurisdiction over Parque, and its judgment was void.
The judgment is therefore vacated, and the case is remanded to the district court with directions to dismiss for lack of jurisdiction.
. Rule 4.5 provides in pertinent part as follows: Where the person upon whom service is to be made is outside of Puerto Rico, or, if within Puerto Rico, is not found after the pertinent necessary steps are taken, or conceals himself to avoid service of summons, or is a foreign corporation having no agent, business agent, cashier, or secretary in Puerto Rico, and if it is so established to the satisfaction of the court by affidavit, and if it also appears from such affidavit or from the verified complaint filed that a cause of action exists which warrants the granting of a relief against the person upon whom service is to be made, or that such person is a necessary or legitimate party to the action, the court may issue an order that service be made by publication.
. Rule 4(e) provides in pertinent part as follows:
Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule.
. This affidavit reads in pertinent part as follows:
The undersigned affiant further attests that he has personally reviewed and verified all of the information, documents, and records pertaining to the above action and to his best knowledge and belief, plaintiff has a cause of action against defendant that warrants the granting of the relief sought in the complaint.
. The two addresses to which the summons was mailed and those at which the process server had attempted service were the principal places of business of the corporation as reflected in the certificate of incorporation on file with the Department of State of Puerto Rico and a previous address appearing on the certificate.
. This motion was apparently intended by Parque and treated by the court as a motion for relief from judgment under Rule 60(b)(4).
. The parties have not suggested that Puerto Rico is to be treated other than as a state for purposes of this rule.
. Hospital contends that the federal district court applying Rule 4(e) in Puerto Rico is not bound by “the specific requirements” of Rule 4.5, and that those requirements apply only to the Commonwealth courts. This interpretation of Rule 4(e), for which Hospital cites no support, ignores the requirement that service be made “under the circumstances” prescribed in the state rule. The obvious import of this language is that the federal court must apply the state rule just as a court of the state would.
. O’Sheaf was decided under the former section 94 of the Code of Civil Procedure. The language of the present rule is identical in this respect to that of section 94.
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_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
TWO PESOS, INC. v. TACO CABANA, INC.
No. 91-971.
Argued April 21, 1992
Decided June 26, 1992
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scaiia, Kennedy, and Souter, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 776. Stevens, J., post, p. 776, and Thomas, J., post, p. 785, filed opinions concurring in the judgment.
Kimball J. Corson argued the cause and filed the briefs for petitioner.
Richard G. Taranto argued the cause for respondent. With him on the brief were H. Bartow Farr III and James Eliasberg
Arthur M. Handler and Ronald S. Katz filed a brief for the Private Label Manufacturers Association as amicus curiae urging reversal.
Bruce P. Keller filed a brief for the United States Trademark Association as amicus curiae. ■
Justice White
delivered the opinion of the Court.
The issue in this case is whether the trade dress of a restaurant may be protected under § 43(a) of the Trademark Act of 1946 (Lanham Act), 60 Stat. 441, 15 U. S. C. § 1125(a) (1982 ed.), based on a finding of inherent distinctiveness, without proof that the trade dress has secondary meaning.
I
Respondent Taco Cabana, Inc., operates a chain of fast-food restaurants in Texas. The restaurants serve Mexican food. The first Taco Cabana restaurant was opened in San Antonio in September 1978, and five more restaurants had been opened in San Antonio by 1985. Taco Cabana describes its Mexican trade dress as
“a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme.” 932 F. 2d 1113, 1117 (CA5 1991).
In December 1985, a Two Pesos, Inc., restaurant was opened in Houston. Two Pesos adopted a motif very similar to the foregoing description of Taco Cabana’s trade dress. Two Pesos restaurants expanded rapidly in Houston and other markets, but did not enter San Antonio. In 1986, Taco Cabana entered the Houston and Austin markets and expanded into other Texas cities, including Dallas and El Paso where Two Pesos was also doing business.
In 1987, Taco Cabana sued Two Pesos in the United States District Court for the Southern District of Texas for trade dress infringement under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a) (1982 ed.), and for theft of trade secrets under Texas common law. The case was tried to a jury, which was instructed to return its verdict in the form of, answers to five questions propounded by the trial judge. The jury’s answers were: Taco Cabana has a trade dress; taken as a whole, the trade dress is nonfunctional; the trade dress is inherently distinctive; the trade dress has not acquired a secondary meaning in the Texas market; and the alleged infringement creates a likelihood of confusion on the part of ordinary customers as to the source or association of the restaurant’s goods or services. Because, as the jury was told, Taco Cabana’s trade dress was protected if it either was inherently distinctive or had acquired a secondary meaning, judgment was entered awarding damages to Taco Cabana. In the course of calculating damages, the trial court held that Two Pesos had intentionally and deliberately infringed Taco Cabana’s trade dress.
The Court of Appeals ruled that the instructions adequately stated the applicable law and that the evidence supported the jury’s findings. In particular, the Court of Appeals rejected petitioner’s argument that a finding of no secondary meaning contradicted a finding of inherent distinctiveness.
In so holding, the court below followed precedent in the Fifth Circuit. In Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F. 2d 695, 702 (CA5 1981), the court noted that trademark law requires a demonstration of secondary meaning only when the claimed trademark is not sufficiently distinctive of itself to identify the producer; the court held that the same principles should apply to protection of trade dresses. The Court of Appeals noted that this approach conflicts with decisions of other courts, particularly the holding of the Court of Appeals for the Second Circuit in Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F. 2d 299 (1981), cert. denied, 455 U. S. 909 (1982), that § 48(a) protects unregistered trademarks or designs only where secondary meaning is shown. Chevron, supra, at 702. We granted certiorari to resolve the conflict among the Courts of Appeals on the question whether trade dress that is inherently distinctive is protectible under § 43(a) without a showing that it has acquired secondary meaning. 502 U. S. 1071 (1992). We find that it is, and we therefore affirm.
pH HH
The Lanham Act was intended to make “actionable the deceptive and misleading use of marks” and “to protect persons engaged in . . . commerce against unfair competition.” §45, 15 U. S. C. §1127. Section 43(a) “prohibits a broader range of practices than does §32,” which applies to registered marks, Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 858 (1982), but it is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under §2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a). See A. J. Canfield Co. v. Honickman, 808 F. 2d 291, 299, n. 9 (CA3 1986); Thompson Medical Co. v. Pfizer Inc., 753 F. 2d 208, 215-216 (CA2 1985).
A trademark is defined in 15 U. S. C. § 1127 as including “any word, name, symbol, or device or any combination thereof” used by any person “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” In order to be registered, a mark must be capable of distinguishing the applicant’s goods from those of others. § 1052. Marks are often classified in categories of generally increasing distinctiveness; following the classic formulation set out by Judge Friendly, they may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F. 2d 4, 9 (CA2 1976). The Court of Appeals followed this classification and petitioner accepts it. Brief for Petitioner 11-15. The latter three categories of marks, because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection. In contrast, generic marks — those that “refe[r] to the genus of which the particular product is a species,” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985), citing Abercrombie & Fitch, supra, at 9 — are not registrable as trademarks. Park ’N Fly, supra, at 194.
Marks which are merely descriptive of a product are not inherently distinctive. When used to describe a product, they do not inherently identify a particular source, and hence cannot be protected. However, descriptive marks may acquire the distinctiveness which will allow them to be protected under the Act. Section 2 of the Lanham Act provides that a descriptive mark that otherwise could not be registered under the Act may be registered if it “has become distinctive of the applicant’s goods in commerce.” §§2(e), (f), 15 U. S. C. §§ 1052(e), (f). See Park ’N Fly, supra, at 194, 196. This acquired distinctiveness is generally called “secondary meaning.” See ibid.; Inwood Laboratories, supra, at 851, n. 11; Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 118 (1938). The concept of secondary meaning has been applied to actions under §43(a). See, e.g., University of Georgia Athletic Assn. v. Laite, 756 F. 2d 1535 (CA11 1985); Thompson Medical Co. v. Pfizer Inc., supra.
The general rule regarding distinctiveness is clear: An identifying mark is distinctive and capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Restatement (Third) of Unfair Competition § 13, pp. 37-38, and Comment a (Tent. Draft No. 2, Mar. 23,1990). Cf. Park ’N Fly, supra, at 194. It is also clear that eligibility for protection under § 43(a) depends on nonfunetionality. See, e. g., Inwood Laboratories, supra, at 863 (White, J., concurring in result); see also, e. g., Brunswick Corp. v. Spinit Reel Co., 832 F. 2d 513, 517 (CA10 1987); First Brands Corp. v. Fred Meyers, Inc., 809 F. 2d 1378, 1381 (CA9 1987); Stormy Clime Ltd. v. Pro-Group, Inc., 809 F. 2d 971, 974 (CA2 1987); Ambrit, Inc. v. Kraft, Inc., 812 F. 2d 1531, 1535 (CA11 1986); American Greetings Corp. v. Dan-Dee Imports, Inc., 807 F. 2d 1136, 1141 (CA3 1986). It is, of course, also undisputed that liability under § 43(a) requires proof of the likelihood of confusion. See, e.g., Brunswick Corp., supra, at 516-517; AmBrit, supra, at 1535; First Brands, supra, at 1381; Stormy Clime, supra, at 974; American Greetings, supra, at 1141.
The Court of Appeals determined that the District Court’s instructions were consistent with the foregoing principles and that the evidence supported the jury’s verdict. Both courts thus ruled that Taco Cabana’s trade dress was not descriptive but rather inherently distinctive, and that it was not functional. None of these rulings is before us in this case, and for present purposes we assume, without deciding, that each of them is correct. In going on to affirm the judgment for respondent, the Court of Appeals, following its prior decision in Chevron, held that Taco Cabana’s inherently distinctive trade dress was entitled to protection despite the lack of proof of secondary meaning. It is this issue that is before us for decision, 'and we agree with its resolution by the Court of Appeals. There is no persuasive reason to apply to trade dress a general requirement of secondary meaning which is at odds with the principles generally applicable to infringement suits under § 43(a). Petitioner devotes much of its briefing to arguing issues that are not before us, and we address only its arguments relevant to whether proof of secondary meaning is essential to qualify an inherently distinctive trade dress for protection under § 43(a).
Petitioner argues that the jury’s finding that the trade dress has not acquired a secondary meaning shows conclusively that the trade dress is not inherently distinctive. Brief for Petitioner 9. The Court of Appeals’ disposition of this issue was sound:
“Two Pesos’ argument — that the jury finding of inherent distinctiveness contradicts its finding of no secondary meaning in the Texas market — ignores the law in this circuit. While the necessarily imperfect (and often prohibitively difficult) methods for. assessing secondary meaning address the empirical question of current consumer association, the legal recognition of an inherently distinctive trademark or trade dress acknowledges the owner’s legitimate proprietary interest in its unique and valuable informational device, regardless of whether substantial consumer association yet bestows the additional empirical protection of secondary meaning.” 932 F. 2d, at 1120, n. 7.
Although petitioner makes the above argument, it appears to concede elsewhere in its brief that it is possible for a trade dress, even a restaurant trade dress, to be inherently distinctive and thus eligible for protection under § 43(a). Brief for Petitioner 10-11, 17-18; Reply Brief for Petitioner 10-14. Recognizing that a general requirement of secondary meaning imposes “an unfair prospect of theft [or] financial loss” on the developer of fanciful or arbitrary trade dress at the outset of its use, petitioner suggests that such trade dress should receive limited protection without proof of secondary meaning. Id., at 10. Petitioner argues that such protection should be only temporary and subject to defeasance when over time the dress has failed to acquire a secondary meaning. This approach is also vulnerable for the reasons given by the Court of Appeals. If temporary protection is available from the earliest use of the trade dress, it must be because it is neither functional nor descriptive, but an inherently distinctive dress that is capable of identifying a particular source of the product. Such a trade dress, or mark, is not subject to copying by concerns that have an equal opportunity to choose their own inherently distinctive trade dress. To terminate protection for failure to gain secondary meaning over some unspecified time could not be based on the failure of the dress to retain its fanciful, arbitrary, or suggestive nature, but on the failure of the user of the dress to be successful enough in the marketplace. This is not a valid basis to find a dress or mark ineligible for protection. The user of such a trade dress should be able to maintain what competitive position it has and continue to seek wider identification among potential customers.
This brings us to the line of decisions by the Court of Appeals for the Second Circuit that would find protection for trade dress unavailable absent proof of secondary meaning, a position that petitioner concedes would have to be modified if the temporary protection that it suggests is to be recognized. Brief for Petitioner 10-14. In Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F. 2d 299 (1981), the plaintiff claimed protection under § 43(a) for a product whose features the defendant had allegedly copied. The Court of Appeals held that unregistered marks did not enjoy the “presumptive source association” enjoyed by registered marks and hence could not qualify for protection under § 43(a) without proof of secondary meaning. Id., at 303, 304. The court’s rationale seemingly denied protection for unregistered, but inherently distinctive, marks of all kinds, whether the claimed mark used distinctive words or symbols or distinctive product design. The court thus did not accept the arguments that an unregistered mark was capable of identifying a source and that copying such a mark could be making any kind of a false statement or representation under § 43(a).
This holding is in considerable tension with the provisions of the Lanham Act. If a verbal or symbolic mark or the features of a product design may be registered under §2, it necessarily is a mark “by which the goods of the applicant may be distinguished from the goods of others,” 60 Stat. 428, and must be registered unless otherwise disqualified. Since §2 requires secondary meaning only as a condition to registering descriptive marks, there are plainly marks that are registrable without showing secondary meaning. These same marks, even if not registered, remain inherently capable of distinguishing the goods of the users of these marks. Furthermore, the copier of such a mark may be seen as falsely claiming that his products may for some reason be thought of as originating from the plaintiff.
Some years after Vibrant, the Second Circuit announced in Thompson Medical Co. v. Pfizer Inc., 753 F. 2d 208 (1985), that in deciding whether an unregistered mark is eligible for protection under § 43(a), it would follow the classification of marks set out by Judge Friendly in Abercrombie & Fitch, 537 F. 2d, at 9. Hence, if an unregistered mark is deemed merely descriptive, which the verbal mark before the court proved to be, proof of secondary meaning is required; however, “[s]uggestive marks are eligible for protection without any proof of secondary meaning, since the connection between the mark and the source is presumed.” 753 F. 2d, at 216. The Second Circuit has nevertheless continued to deny protection for trade dress under § 43(a) absent proof of secondary meaning, despite the fact that § 43(a) provides no basis for distinguishing between trademark and trade dress. See, e. g., Stormy Clime Ltd. v. ProGroup, Inc., 809 F. 2d, at 974; Union Mfg. Co. v. Han Baek Trading Co., 763 F. 2d 42, 48 (1985); LeSportsac, Inc. v. K mart Corp., 754 F. 2d 71, 75 (1985).
The Fifth Circuit was quite right in Chevron, and in this ease, to follow the Abercrombie classifications consistently and to inquire whether trade dress for which protection is claimed under § 43(a) is inherently distinctive. If it is, it is capable of identifying produets or services as coming from a specific source and secondary meaning is not required. This is the rule generally applicable to trademarks, and the protection of trademarks and trade dress under § 43(a) serves the same statutory purpose of preventing deception and unfair competition. There is no persuasive reason to apply different analysis to the two. The “proposition that secondary meaning must be shown even if the trade dress is a distinctive, identifying mark, [is] wrong, for the reasons explained by Judge Rubin for the Fifth Circuit in Chevron.” Blau Plumbing, Inc. v. S. O. S. Fix-It, Inc., 781 F. 2d 604, 608 (CA7 1986). The Court of Appeals for the Eleventh Circuit also follows Chevron, Ambrit, Inc. v. Kraft, Inc., 805 F. 2d 974, 979 (1986), and the Court of Appeals for the Ninth Circuit appears to think that proof of secondary meaning is superfluous if a trade dress is inherently distinctive, Fuddruckers, Inc. v. Doc’s B. R. Others, Inc., 826 F. 2d 837, 843 (1987).
It would be a different matter if there were textual basis in § 43(a) for treating inherently distinctive verbal or symbolic trademarks differently from inherently distinctive trade dress. But there is none. The section does not mention trademarks or trade dress, whether they be called generic, descriptive, suggestive, arbitrary, fanciful, or functional. Nor does the concept of secondary meaning appear in the text of § 43(a). Where secondary meaning does appear in the statute, 15 U. S. C. § 1052 (1982 ed.), it is a requirement that applies only to merely descriptive marks and not to inherently distinctive ones. We see no basis for requiring secondary meaning for inherently distinctive trade dress protection under §.43(a) but not for other distinctive words, symbols, or devices capable of identifying a producer’s product.
Engrafting onto § 43(a) a requirement of secondary meaning for inherently distinctive trade dress also would undermine the purposes of the Lanham Act. Protection of trade dress, no less than of trademarks, serves the Act’s purpose to “secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. National protection of trademarks is desirable, Congress concluded, because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation.” Park ’N Fly, 469 U. S., at 198, citing S. Rep. No. 1333, 79th Cong., 2d Sess., 3-5 (1946) (citations omitted). By making more difficult the identification of a producer with its product, a secondary meaning requirement for a nondeseriptive trade dress would hinder improving or maintaining the producer’s competitive position.
Suggestions that under the Fifth Circuit’s law, the initial user of any shape or design would cut off competition from products of like design and shape are not persuasive. Only nonfunctional, distinctive trade dress is protected under § 43(a). The Fifth Circuit holds that a design is legally functional, and thus unproteetible, if it is one of a limited number of equally efficient options available to competitors and free competition would be unduly hindered by according the design trademark protection. See Sicilia Di R. Biebow & Co. v. Cox, 732 F. 2d 417, 426 (1984). This serves to assure that competition will not be stifled by the exhaustion of a limited number of trade dresses.
On the other hand, adding a secondary meaning requirement could have anticompetitive effects, creating particular burdens on the startup of small companies. It would present special difficulties for a business, such as respondent, that seeks to start a new product in a limited area and then expand into new markets. Denying protection for inherently distinctive nonfunctional trade dress until after secondary meaning has been established would allow a competitor, which has not adopted a distinctive trade dress of its own, to appropriate the originator’s dress in other markets and to deter the originator from expanding into and competing in these areas.
As noted above, petitioner concedes that protecting an inherently distinctive trade dress from its inception may be critical to new entrants to the market and that withholding protection until secondary meaning has been established would be contrary to the goals of the Lanham Act. Petitioner specifically suggests, however, that the solution is to dispense with the requirement of secondary meaning for a reasonable, but brief, period at the outset of the use of a trade dress. Reply Brief for Petitioner 11-12. If § 43(a) does not require secondary meaning at the outset of a business’ adoption of trade dress, there is no basis in the statute to support the suggestion that such a requirement comes into being after some unspecified time.
1 — < h — {
We agree with the Court of Appeals that proof of secondary meaning is not required to prevail on a claim under § 43(a) of the Lanham Act where the trade dress at issue is inherently distinctive, and accordingly the judgment of that court is affirmed.
It is so ordered.
The District Court instructed the jury: ‘“[Tirade dress’ is the total image of the business. Taco Cabana’s trade dress may include the shape and general appearance of the exterior of the restaurant, the identifying sign, the interior kitchen floor plan, the decor, the menu, the equipment used to serve food, the servers’ uniforms and other features reflecting on the total image of the restaurant.” 1 App. 83-84. The Court of Appeals accepted this definition and quoted from Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F. 2d 1253, 1256 (CA5 1989): “The ‘trade dress’ of a product is essentially its total image and overall appearance.” See 932 F. 2d 1113, 1118 (CA5 1991). It “involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” John H. Harland Co. v. Clarke Checks, Inc., 711 F. 2d 966, 980 (CA11 1983). Restatement (Third) of Unfair Competition § 16, Comment a (Tent. Draft No. 2, Mar. 23, 1990).
Section 43(a) provides: “Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” 60 Stat. 441.
This provision has been superseded by § 132 of the Trademark Law Revision Act of 1988,102 Stat. 3946, 15 U. S. C. § 1121.
The instructions were that, to be found inherently distinctive, the trade dress must not be descriptive.
Secondary meaning is used generally to indicate that a mark or dress “has come through use to be uniquely associated with a specific source.” Restatement (Third) of Unfair Competition § 13, Comment e (Tent. Draft No. 2, Mar. 23, 1990). “To establish secondary meaning, a manufacturer must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the product rather than the product itself.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982).
The Court of Appeals agreed: "The weight of the evidence persuades us, as it did Judge Singleton, that Two Pesos brazenly copied Taco Cabana’s successful trade dress, and proceeded to expand in a manner that foreelosed several lucrative markets within Taeo Cabana’s natural zone of expansion.” 932 F. 2d, at 1127, n. 20.
We limited our grant of certiorari to the above question on which there is a conflict. We did not grant certiorari on the second question presented by the petition, which challenged the Court of Appeals’ acceptance of the jury’s finding that Taco Cabana’s trade dress was not functional.
The Lanham Act, including the provisions at issue here, has been substantially amended since the present suit was brought. See Trademark Law Revision Act of 1988,102 Stat. 3946,16 U. S. C. § 1121.
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:
|
sc_respondent
|
004
|
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.
DILLARD v. INDUSTRIAL COMMISSION OF VIRGINIA et al.
No. 72-5411.
Decided December 11, 1972
Per Curiam.
Appellant brought a class action to challenge the constitutionality of a state regulation that permitted temporary suspension of his workmen’s compensation payments without a prior hearing. He appealed an adverse judgment, but his jurisdictional statement states that after the decision below “an Order was entered by the Commission approving a lump-sum settlement of $4,243.20 in full settlement of [his] individual claim for compensation for his injury which occurred on March 15, 1971.”
In this state of the record, the motion to proceed in forma pauperis is granted, the judgment is vacated, and the case is remanded to the United States District Court for the Eastern District of Virginia to consider whether this case is moot.
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_appel1_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Johnnie L. JOHNSON, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
No. 84-8419.
United States Court of Appeals, Eleventh Circuit.
April 24, 1985.
Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.
Alice C. Stewart, Atlanta, Ga., for petitioner-appellee, cross-appellant.
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
GODBOLD, Chief Judge:
Petitioner is a Georgia state prisoner convicted in 1975 and sentenced to death for murder, life imprisonment for rape, 20 years for kidnapping, and ten years for aggravated assault. The district court, 585 F.Supp. 1496, after an evidentiary hearing, granted the writ of habeas corpus on the ground of ineffective assistance of counsel at sentencing and denied relief on all other grounds. We affirm the denial of relief on the other grounds, vacate the judgment on the issue of ineffective counsel at sentencing, and remand for reconsideration of that issue under new standards handed down by the Supreme Court since the district court’s decision.
I. Facts
Petitioner Johnnie L. Johnson and co-perpetrator Jerry Sprouse approached two young women, Suzanne Edenfield, age 20, and Lynn Harrod, age 18, in Savannah, Georgia, after the women left a rock concert around 11 p.m. The two women agreed to smoke a joint (marijuana) with the men, and the four went to a park. After the four of them smoked two or three joints of marijuana and listened to a tape, the women set above to leave in their own car. Sprouse took a gun from the trunk of Johnson’s car and forced the women into Johnson’s car. The men bound the women’s hands behind them with wire. Suzanne gagged Lynn at the direction of the men. Johnson then gagged Suzanne and told her he would kill her if she made any noise.
Johnson drove to a wooded area outside of town. Once there he took Suzanne away from the car, disrobed her, and, the jury could find, raped her. Sprouse removed Lynn’s clothing and attempted to have intercourse with her in the back seat of the car, but was unable to complete the act. Johnson put some of Suzanne’s clothes back on her and brought her back to the car. At Sprouse’s direction Johnson again removed Suzanne’s clothing. Both of the women, nude and still bound, were ordered by Johnson to stand at the side of the road. Johnson got in his car and turned it around, then, according to Lynn, got out of the car and stood beside Sprouse, who was behind and at almost point blank range from the women. Johnson testified, however, that he remained in the car after turning it around. Lynn heard a gunshot and saw Suzanne fall to the ground, fatally wounded. Suzanne was struck by two shots, one to the head, one to the chest. A pathologist testified that probably she lived about 15 minutes. Two shots struck Lynn, wounding her. Lynn did not see which of the two men held the gun and fired the shots. The district judge found that most likely Sprouse was the triggerman.
Johnson and Sprouse left the scene in the car, taking with them all of the women’s clothing, which they threw out at various points. Lynn went to a nearby house, and police were called. The two men returned to town to wipe off fingerprints from the women’s car but did not find it. They threw the gun in a river, took Johnson’s car to South Carolina and burned it, and fled to South Dakota and then to Canada, in Sprouse’s car. The burned car was traced to Johnson. He and Sprouse returned to South Carolina and were arrested.
II. Excuse of Jurors for Cause
The district court considered the excusal for cause of veniremen Louis Bryan, Sam Coleman and Angus Henry and held that interrogation of each at trial revealed that under no circumstances conceivable at the time could he impose the death penalty on the defendant. We have examined the voir dire of these three persons, and it shows beyond question that the district court correctly held that the trial court properly excused them. All said unequivocally that they could not impose the death penalty. Georgia requires jurors to determine whether the death penalty is appropriate in the case. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). Under the law both before and after Wainwright v. Witt, — U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the district court was correct. See Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) (a juror wholly unable even to consider the death penalty in assessing sentence should be excused).
III. Evidence of Other Misconduct
The prosecution introduced over objection the testimony of witness Dan Lilly, a friend of Johnson’s, that about a week and a half before the crimes in question Johnson had mentioned to him that he (Johnson) and Sprouse recently had seen a couple of girls coming in and out at different clubs, that he (Johnson) wanted to have sex with them and said “if they didn’t want to do what he told them to, he was going to force them.” Lilly described how at a later occasion Johnson waved a pistol owned by Lilly, saying that as long as he had the pistol he could do what he wanted to. Johnson acknowledged the incident concerning Lilly’s pistol but stated that the conversation was limited to whether it was an antique.
Also introduced was testimony of Greg Yawn that a week and a half or two weeks before the crimes in question a magazine saleswoman came to Yawn’s house while Johnson was there, and Johnson mentioned to Yawn possibly raping her and using the gun because he didn’t want anyone to know about it. He invited Yawn to go along with him on the venture, but nothing further occurred.
The Supreme Court of Georgia pointed out that Johnson’s participation in the crimes was undisputed and that the foregoing testimony of similar misconduct was highly relevant to show his “bent of mind” to commit rape and to voluntarily participate in kidnapping and raping the two victims. Johnson, 250 S.E.2d at 399.
The district court correctly rejected Johnson’s contention that thig prior misconduct evidence improperly put his character in evidence (and, inferentially, that it was so fundamentally unfair that it violated due process).
IV. Ineffective Counsel at Trial
The district court considered an array of claims that counsel was ineffective at the guilt phase. Counsel had testified at the state habeas hearing. The court reviewed all of these claims under pre-Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standards, and rejected all of them.
Defense counsel’s trial strategy cannot be faulted. The tactical choice was to recognize that Johnson participated in the kidnapping but to claim that he only attempted to rape Suzanne and that he did not participate in the shooting. It was, in effect, a recognition that conviction on some charges, and a prison sentence, were inevitable, and an attempt to escape the death penalty. It is difficult to see that counsel had any other rational choice. Johnson never claimed to have an alibi. In view of the actual events — the women’s car left in town, two nude and bound women abandoned on a remote road at night, both shot, one dead and the other alive and seeking help, the clothing of both taken away — the question was “who did it?” The surviving victim identified Johnson as driver of the car into which she and Suzanne had been forced and as a participant in the events that followed. She described the car, and her description tallied with Johnson’s car found burned in South Carolina. She identified articles of their clothing found at a place distant from the scene.
Johnson took the stand and gave his version. His contention that he only attempted to rape Suzanne was hardly credible since sperm was found in her body. He claimed that Sprouse fired the shots while he, Johnson, remained in the car after turning it around.
Petitioner’s suggestion that counsel somehow should have developed additional evidence that Johnson did not pull the trigger and that he only attempted to rape Suzanne is frivolous. The same is true of the contention that somehow he should have turned up evidence to rebut the testimony of Yawn and Lilly concerning Johnson’s respective statements to them (about girls going in and out of night clubs and about the magazine saleswoman). Johnson’s statements were made when no one else was present. Johnson acknowledged that the two conversations described by Yawn and Lilly occurred, and he could only seek to explain and soften his statements and the witnesses’ descriptions of the circumstances. With respect to the pistol incident, the evidence is unclear on whether others were present when the pistol incident occurred, but in the overall context of the trial Lilly’s testimony concerning Johnson’s statement about the pistol could not have affected the result. The Johnson/Sprouse stolen pistol was, without dispute, in the trunk of Johnson’s car, was seen in only Sprouse’s hand during the crimes, and the district court found that Sprouse most likely fired the shots.
The district court did not err in rejecting petitioner’s attack on the trial strategy and on counsel’s investigation of issues relating to guilt.
V. The Enmund Issue
Johnson raises a number of arguments under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the Supreme Court held that the Eighth Amendment barred the imposition of the death penalty “in the absence of proof that [the defendant] killed or attempted to kill, and regardless of whether [he] intended or contemplated that life be taken____” 458 U.S. at 801, 102 S.Ct. at 3379. We find no error.
Enmund was a felony murder case in which the Supreme Court examined the record to determine whether the Eighth Amendment permitted imposition of the death penalty on a defendant who aided and abetted a felony in the course of which the victims were killed. It concluded that the record did not justify a finding that Enmund had any intention of participating in or facilitating a murder, thus his level of culpability was not sufficient to justify imposition of the death penalty.
In the present case we are not required to make the Enmund examination. This is a malice murder case, in which the jury was instructed on malice murder. Its verdict necessarily established its finding of intent, in contrast to Enmund. Compare Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (en banc), which like Enmund was a felony murder case and in which this court en banc accordingly examined the record to find if the defendant’s culpability satisfied the Eighth Amendment standards set out in Enmund. See also Drake v. Francis, 727 F.2d 990, 997 (11th Cir.1984); Henry v. Wainwright, 721 F.2d 990, 995 (5th Cir.1983). Green v. Zant, 738 F.2d 1529, 1534 (11th Cir.1984), was a malice murder case in which the court examined the evidence to see if it supported the jury finding of guilt on the charge. This was unnecessary. The Green court itself recognized that the case before it was “distinguishable from Enmund in that it was presented to the jury on a malice murder theory, rather than as felony murder.” Id. at 1534.
Finally, the jury was not required to make a specific finding on the defendant’s culpability. Ross, 756 F.2d at 1488.
VI. Use of Incriminating Statements
Incriminating statements made by petitioner to police shortly after his arrest were not improperly uséd at trial. They were first referred to by defense counsel in an affirmative effort to establish Johnson’s trial credibility. Johnson’s counsel asked him whether initially he had told police that Sprouse forced him to participate in the crimes and whether he now acknowledged that these statements were false. Johnson responded that he knew that lying would not help him and “I am here to tell the truth.” T. 213-14. Later the prosecution used one of the statements to bring out a single sentence uttered by defendant after he and Sprouse had left the area of the crimes, in which Johnson used a sexual expletive that, the prosecution said, demonstrated his attitude toward “the whole thing.” The only objection was to relevance. The exact sequence and circumstances of the statements given by Johnson are not revealed. Assuming he did not by his earlier use of one of the statements for his own tactical purposes, waive objections to a statement being used to bring out the particular sexual expletive incident, the use made by the prosecution was in context relatively trivial. Johnson’s actions spoke too loudly for a single expression of his post-event attitude to make much difference.
VII. Jury Instruction on Reasonable Doubt
The court charge on reasonable doubt is set out in the margin.
Later the court repeated the requirement of proof beyond reasonable doubt with respect to rape (T. 252, 253) and murder (T. 254), and then said:
I charge you that if you believe beyond a reasonable doubt that the defendant did, in this county, commit the crimes as charged of kidnapping, aggravated assault, rape, and murder, remembering again considering each separately as charged in separate Bills of Indictment, then you would be authorized to find the defendant guilty of that crime, considering each separately, the crime in each indictment. I charge you if you have a reasonable doubt that the defendant is guilty of the crimes charged, it would be your duty to give him the benefit of the doubt and find him not guilty.
T. 254-55. Petitioner contends that the phrase “If your minds are wavering, unsettled or unsatisfied, then that’s the doubt of the law and you should acquit” eliminates the requirement of reasonable doubt because “wavering, unsettled or unsatisfied” were not defined and there was no instruction as to the degree required with respect to each of these terms to constitute reasonable doubt. The Georgia Supreme Court held the charge not erroneous, Johnson, 295 S.E.2d at 69, and the district court declined to disturb this conclusion. We find in the record no objection to the charge.
Considering the overall charge, in which reasonable doubt was referred to over and over again, there was no error of constitutional dimension.
VIII. Instruction to Jury on Mitigating Circumstances
The trial court instructed the jury to determine whether the following aggravating circumstance, from O.C.G.A. 17-10-30(b)(7), (c) (1982), was proved beyond reasonable doubt:
The offense of murder was outrageously or wantonly vile, horrible or inhuman [sic] in that it involved torture, depravity of mind, or aggravated battery to the victim.
It instructed that the jury was authorized to consider all facts and circumstances in mitigation, and it defined mitigating circumstances as:
Mitigating circumstances are those which do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.
T. 267.
The Georgia Supreme Court held this instruction sufficient. The district court declined to disturb this conclusion, and we affirm its action. The instruction is minimal but passes constitutional muster under Westbrook v. Zant, 704 F.2d 1487, 1502 (11th Cir.1983), and Tucker v. Zant, 724 F.2d 882, 891 (11th Cir.1984).
Moreover, the instruction sufficiently informed the jury, pursuant to Spivey v. Zant, 661 F.2d 464 (5th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982), that even if it found an aggravating circumstance it could still recommend not to impose death. The court instructed:
If you should find aggravating circumstance or circumstances and not recommend mercy, then the defendant will be put to death by electrocution. If you should find aggravating circumstances or circumstance and recommend mercy, the defendant will be sentenced to life in prison.
T. 269. This instruction, together with the earlier instructions on mitigating circumstances, sufficiently told the jury it could recommend life imprisonment even if it found an aggravating circumstance. West-brook, 704 F.2d at 1502-03.
IX. Vague and Overbroad Application of Georgia Statute on Aggravating Circumstances
The only aggravating circumstance presented to the jury was subsection (b)(7) of the Georgia Statute, quoted above. The jury found, following the language of (b)(7):
We the jury, find the following statutory aggravating circumstances against the defendant: (a) The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim. We fix the punishment of defendant at death.
2 Rec. 277.
The Georgia Supreme Court found:
The murder in this case was conducted in a methodical, execution-style fashion. The victim was disrobed at the time of the murder, and she had her hands tied behind her back. The murder itself was preceded by the rape of the victim. This clearly evinced a depravity of mind on the part of the defendant and involved torture to the victim. In both respects, it was outrageously and wantonly vile.
Johnson, 250 S.E.2d at 400. Other points not mentioned by the Georgia court were that Suzanne was threatened with death if she made outcry, taken to a remote spot and into the woods, stripped, partially re-clothed after the rape, then stripped again by Johnson at Sprouse’s instruction, and forced to stand nude at the side of the road.
In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Supreme Court held that a death sentence had been imposed under so broad and vague a construction of § (b)(7) as to violate the Eighth and Fourteenth Amendments. The Court found that the facts of Godfrey, including that the victims had been killed instantaneously, did not satisfy Georgia Supreme Court decisions narrowing the scope of § (b)(7). Here, however, the facts as recited by the Georgia Supreme Court, and as supplemented above, do satisfy a properly narrowed construetion of § (b)(7). It is now well established under Georgia law that sexual abuse, including rape, may constitute “torture” for the purpose of finding an aggravating circumstance under § (b)(7). Green v. Zant, 738 F.2d 1529, 1540 (11th Cir.1984). A finding of aggravating circumstance under (b)(7) will therefore be upheld if there was a rape. [Carzell] Moore v. Zant, 722 F.2d 640, 642, 647-48 (11th Cir.1983), Brooks v. Francis, 716 F.2d 780, 783, 792-93 (11th Cir.1983). Subsection (b)(7) was not applied to Johnson in violation of his Eighth or Fourteenth Amendment rights.
X. Arbitrary and Capricious Application of the Death Penalty
At the evidentiary hearing the district court declined to order funds made available to petitioner to secure a copy of the transcript in McCleskey v. Zant, 580 F.Supp. 338 (M.D.Ga.1984), in order that the statistical data in that case be offered into evidence. Petitioner’s request was made orally during the evidentiary hearing, and the court denied it on the ground that the matter had not previously been presented and that the request came too late. This was within its discretion.
XI. Denial of Change of Venue
Johnson moved for change of venue with supporting newspaper extracts showing actions by county commissioners of the county of trial (Chatham County). The commissioners had adopted a resolution calling on judges of the county to impose maximum sentences permitted by law on persons convicted of crimes such as murder, armed robbery, rape, burglary and the sale of hard drugs, as the best deterrent to such crimes. Local judges and the bar association of Savannah, the principal city in the county, spoke unfavorably of the resolution. One commissioner then ran a newspaper ad asking citizens to send in a ballot expressing their views, and approximately 1400 persons indicated their support for the resolution and eight their opposition. The commissioner then publicly stated that “the will of the people is obvious.”
On the venue issue, the Georgia Supreme Court examined the extensive voir dire of jurors, more than 300 pages, and, applying Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), found that the trial court did not abuse its discretion in denying the writ. Johnson, 250 S.E.2d at 399-400. The district court rejected the issue without discussion.
We find no error. Normally the denial of a motion for a change of venue is error only if the jurors had a preconceived notion as to the particular defendant’s guilt or innocence that they cannot lay aside. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975); Irvin, 366 U.S. at 722-23, 81 S.Ct. at 1642; Brooks v. Francis, 716 F.2d at 786. Here, the pre-trial publicity did not focus on Johnson at all nor even the question of guilty or innocence.
XII. Other Issues
In oral argument at the guilt phase the prosecutor stated, over objection, that “a dog, a dog, a male dog will not rape a female dog.” T. 30. If error at all, it was not such as to violate constitutional limitations. The district court was correct in rejecting this point.
The contention that death by electrocution violates the Eighth Amendment is frivolous.
XIII. Ineffective Counsel at Sentencing
The district court held counsel was ineffective at the sentencing phase, based upon the standards then in force in this circuit under Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982) (Unit B). The Supreme Court has since reversed that case, Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and established a higher threshold for ineffectiveness. We vacate the judgment on this issue and remand the case for reconsideration of the issue under the Strickland standards.
AFFIRMED in part, VACATED in part and REMANDED.
. The Georgia Supreme Court affirmed the convictions, Johnson v. State, 240 Ga. 649, 250 S.E.2d 394 (1978); denied a motion for extraordinary relief, Johnson v. State, 246 Ga. 474, 271 S.E.2d 789 (1980); and affirmed the denial of habeas corpus, Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63, cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983).
. Johnson and Sprouse had stolen the pistol from the home of a girl they knew.
. Johnson testified that he only attempted to rape her. However, Lynn testified that as soon as Suzanne was brought back to the car, she [Suzanne] told her she had been raped. Sperm was found in Suzanne’s body.
. Sprouse was tried and sentenced to death. The sentence was reversed for failure of the court to conduct a pre-sentence hearing, Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979). He was resentenced to death and that sentence reversed for errors in exclusion of evidence, Sprouse v. State, 250 Ga. 174, 296 S.E.2d 584 (1982). He has not been sentenced a third time.
. The habeas petition questions the excusal of venireman Edward Green. But at the conclusion of his questioning the prosecution excused him by peremptory challenge. 5 Rec. 155.
. The prosecution argued to the jury that it did not know who pulled the trigger, but that [assuming Johnson did not] there was no outcry or objection from him.
. Whether under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), there is evidence sufficient to support the jury's conclusion is an issue not raised, and if it were we would reject it.
. In Fleming v. Kemp, 748 F.2d 1435 (11th Cir. 1984), the indictment charged malice murder. However, one sentence in the jury instruction said that malice was not necessary where the killing occurred in the commission of a felony. The court relied upon another part of the jury instruction to conclude that the instruction as a whole actually did require intent. Thus an examination of the level of culpability pursuant to Enmund was not necessary. In what appears to have been an excess of caution the court did, however, examine the record, not to independently determine whether the Enmund level of culpability was present but to further satisfy itself that the jury’s verdict necessarily embraced intent.
. A reasonable doubt means just what it says. It is the doubt of a fair-minded,' impartial juror honestly seeking the truth. It’s not an arbitrary or a capricious doubt, but is a doubt arising from a consideration of the evidence, from a conflict of the evidence or from a lack of evidence. It [sic] after giving consideration to all the facts and circumstances of the case, your minds are wavering, unsettled, or unsatisfied, then that’s the doubt of the law and you should acquit. If that doubt does not exist in your minds as to the guilt of the defendant, then you should convict.
T. 244-45.
. The district court has since decided the statistical issue in McCleskey, denying relief on the statistical issue, and its decision has been affirmed by this court. 753 F.2d 877 (1985).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Alfred James SMITH, Defendant-Appellant.
No. 91-6096.
United States Court of Appeals, Tenth Circuit.
Nov. 15, 1991.
Jerry S. Duncan, Oklahoma City, Okl., for defendant-appellant.
Timothy D. Leonard, U.S. Atty. and Barbara E. Poarch, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.
Before McKAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.
SEYMOUR, Circuit Judge.
Defendant Alfred James Smith appeals his twenty-four month sentence for violation of 18 U.S.C. §§ 2 and 1014 (1988) (aiding and abetting and false statements to a federally insured lending institution). Mr. Smith’s sentence was imposed pursuant to the United States Sentencing Commission Guidelines Manual (Nov. 1, 1990) (hereinafter Guidelines). The district court adopted the probation officer’s offense level calculation under section 2F1.1 of the Guidelines, which governs offenses involving fraud and deceit. The calculation of nineteen reflects a base offense level of six, a nine level enhancement for a loss value of $440,896, and a four level enhancement for Mr. Smith’s role as an organizer pursuant to section 3Bl.l(a) of the Guidelines. Appendix for Appellant, vol. II, Presentence Report. His sentence was reduced from a guideline range of thirty to thirty-seven months to the statutory maximum of two years. Mr. Smith challenges the district court’s calculation of total loss, and the enhancement of his sentence for his role in the offense. We reverse as to both matters and remand for immediate release because Mr. Smith has served his sentence under the proper guideline range.
I.
Because Mr. Smith’s appeal goes only to the propriety of his sentence, we need not restate the facts in great detail. Briefly, from 1986 to 1989, Mr. Smith operated Handcraft Homes, which constructed and marketed single family residences. In the one count on which he pled guilty, Mr. Smith represented to a federally insured institution that a buyer had made a five hundred dollar earnest money payment on a new home, when in fact he had not. On six different occasions, Mr. Smith represented to federally insured institutions that his customers had made down payments of specified amounts when they had either made substantially smaller down payments or no down payments at all. The cumulative value of the loans advanced on the basis of these misrepresentations was $440,896. Not a single loan was in default at the time of sentencing.
II.
In its application of Guideline § 2F1.1, the district court adopted the probation officer’s position that the appropriate loss valuation for computation of the specific offense characteristic was $440,896. Under section 2Fl.l(b)(l)(J), this resulted in a nine level addition to the base offense level of six. To support the increase, the probation officer, and by inference the district court, relied on Guideline Application Note 7 to section 2F1.1, which provides:
“Valuation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). In keeping with the Commission’s policy on attempts, if a probable or intended loss that the defendant was attempting to inflict can be determined, that figure would be used if it was larger than the actual loss.”
(Emphasis added). The district court apparently found that there was no actual loss and that the defendant intended and attempted to inflict a loss of $440,896.
We review factual findings supporting a district court’s offense level calculation under the “clearly erroneous” standard. United States v. Poole, 929 F.2d 1476, 1483 (10th Cir.1991) (calculation of drug quantity). Other circuits have applied this standard to a district court’s calculation of loss under section 2F1.1. United States v. Haddon, 927 F.2d 942, 952 (7th Cir.1991); United States v. Davis, 922 F.2d 1385, 1388 (9th Cir.1991). Because we find no support in the record for the district court’s finding that Smith attempted to inflict a loss in the amount for which he was sentenced, we must reverse the calculation.
The Guidelines increase a defendant’s base offense level sentence for either actual or intended loss, whichever is greater. United States v. Palinkas, 938 F.2d 456, 465 n. 19 (4th Cir.1991) (“if a probable or intended loss was greater than the actual loss, the larger figure will be used”); United States v. Schneider, 930 F.2d 555, 556 (7th Cir.1991). Where the fraud results in actual loss within the definition provided by the commentary to Guidelines § 2B1.1, that value will be considered for purposes of enhancement under section 2F1.1. Where there is no such loss, or where actual loss is less than the loss the defendant intended to inflict, intended or probable loss may be considered. Application Note 7, Guidelines § 2F1.1; see, e.g., United States v. Lohan, 945 F.2d 1214, 1219 (2d Cir.1991) (“Under the Guidelines ‘loss’ ‘may consist of the “probable” loss resulting from the fraud' ” (quoting United States v. Brach, 942 F.2d 141, 143 (2d Cir.1991)); Haddon, 927 F.2d at 951-52; United States v. Wills, 881 F.2d 823, 827 (9th Cir.1989) (affirmed enhancement in credit card fraud case on basis of intended loss where intended loss was greater than actual loss).
A.
Actual Loss
There is no evidence of any actual loss in the record. Neither the probation officer nor the government contended below, nor does the government contend here, that the $440,896 figure represented the amount of property “taken” by Mr. Smith through his misrepresentations. See Application Note 2, Guidelines § 2B1.1. Moreover, the district court made no such finding. Nevertheless, because enhancement could properly be based on actual loss, we review the record to see if the district court’s enhancement of Mr. Smith’s sentence is justified on the basis of actual loss.
Under the circumstances of this case, we conclude that actual loss should be measured by the net value, not the gross value, of what was taken. Although Mr. Smith did receive all the proceeds from the loans, he delivered to the lenders something in return: the security interest in the houses and the promises of the individual borrowers to repay the loans. Under the Guidelines, net loss must reflect the value of the property securing the loans. The government has the burden of proving the amount of actual loss. Because the government has failed to prove any actual loss in this case, Mr. Smith’s sentence may not be enhanced on the basis of actual loss.
This net concept of actual loss comports with common law valuation of fraud. Under the common law, if a defendant deceitfully persuaded a victim to give up something of value, the calculation of loss takes into account any value given to the victim by the defrauder. See Dan B. Dobbs, Remedies § 9.2 at 594-98 (1973) (various damage formulae for civil fraud based on net rather than gross value); Guidelines § 2F1.1, Application Note 7(a) (Nov. 1, 1991).
Our approach thus distinguishes between naked fraudulent takings, and exchanges of property where the wrongdoer merely misrepresents the value of the consideration advanced. If a fraud is a naked taking of property, the net and gross loss are the same since the victim got nothing of value in return for the property given up. However, if the fraud consists of an unequal exchange of property, the loss or taking consists only of the difference in value between what was given and what was obtained. In any event, it is a net value that must be used to measure loss. Any other approach ignores reality. See Schneider, 930 F.2d at 559; cf. United States v. Whitehead, 912 F.2d 448, 452 (10th Cir.1990) (economic loss overvalued). A thief who steals $100,000 is more culpable than a salesman who obtains $100,000 by selling a victim an $80,000 house he fraudulently represents as being worth $100,000. In the latter case, it makes no sense to suggest that $100,000 is the accurate measure of the victim’s loss.
United States v. Johnson, 941 F.2d 1102 (10th Cir.1991), is not to the contrary. In that case we upheld, on the basis of the indictment, a sentence based on the value of several houses that were fraudulently acquired by the defendant. Id. at 1113. Although Mr. Johnson lied about his intention to repay the loans on the houses, the indictment alleged that he fraudulently took the houses, rather than the value of the loans. That indictment made sense in Johnson, where the loans at issue were assumed, and were not the target of the defendant’s fraud. Thus, the seller in Johnson gave the defendant title to the houses in exchange for a fraudulent promise that the defendant would assume the seller’s obligation. In this sense, Johnson involved a naked taking in which the seller received nothing in return because the only consideration offered by the defendant was a worthless promise to assume the loans.
Here there is no actual loss. Mr. Smith’s misrepresentations resulted in an exchange for value, not a net loss to the lending institutions. The government does not contest Mr. Smith’s assertion that the loans were “fully secured by the property involved.” Corrected Brief for Appellant at 5. In order to justify enhancement on the basis of actual loss, the government simply must do more.
Our approach is consistent with the new commentary to Guidelines § 2F1.1, promulgated by the Sentencing Commission to “provide[ ] additional guidance with respect to the determination of loss.” Guidelines, App. C, at 224 (Nov. 1, 1991). The commentary provides:
“In fraudulent loan application cases and contract procurement cases where the defendant’s capabilities are fraudulently represented, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered, or can expect to recover, from any assets pledged to secure the loan.”
Guidelines § 2F1.1, Application Note 7(b) (Nov. 1, 1991) (emphasis added). While our interpretation does not depend on this recent amendment to the Guidelines, its focus on net loss further buttresses our approach. See United States v. Urbanek, 930 F.2d 1512, 1514-15 (10th Cir.1991).
B.
Probable or Intended Loss
Admittedly, the district court need not find an actual loss to increase a defendant’s offense level under section 2F1.1. “The fact that good police work diminished the actual loss to the employer victim should not affect the determination of the extent of defendant’s culpability and responsibility for purposes of sentencing.” United States v. Westmoreland, 911 F.2d 398, 399 (10th Cir.1990) (recovery of stolen car does not bar its inclusion in loss calculation). As we have noted above, in the absence of actual loss, intended loss may be considered. Application Note 7, Guidelines § 2F1.1. To meet the requirements of the Guideline, however, the record must support by a preponderance of the evidence the conclusion that Mr. Smith realistically intended a $440,896 loss, or that a loss in that amount was probable.
Neither the Order entered by the district court in this case, nor the transcript of the sentencing proceedings indicate that the district court had any factual basis for adopting the probation officer’s calculation. Specifically, investigating agent Kevin Markey, of the F.B.I., answered “[n]o,” at the sentencing hearing to defense counsel’s question: “Did you have any indication when [Smith] made the false statements that he wanted the government to lose money?” Supplemental Appendix to Ap-pellee’s Brief at 16. In the same proceeding, on cross-examination, after asserting that the $440,896 figure represented the loss within the meaning of Application Note 7, Probation Officer McKeever cited no factual support for his belief that the total of the six loans constituted the probable or intended loss. Id. at 29-31. Indeed, on direct examination, support for Officer McKeever’s belief was limited to his affirmative response to the question: “Are you satisfied that this 440,000-some-odd dollar figure is the appropriate amount of intended loss?” Id. at 25.
This affirmative response, standing alone, is insufficient to support the increase in Mr. Smith’s offense level. Mr. Smith specifically stated that “[a]t no time did I intend for a federally insured loan company to lose any money or — or anybody else, for that matter.” Id. at 36. As of sentencing, no money has been lost on the loans enabled by Mr. Smith’s fraud.
On appeal, the government never argues that Smith intended to cause loss in the full amount of the loans, only that “the potential that these six loans may eventually go into default is ever present.” Brief of Plaintiff-Appellee at 5. However, as Mr. Smith points out, each of the six loans was secured by the house on which the loan was made, and the home buyers have been paying down their loans. Thus, even under a worst case scenario, the total potential loss could not be the full amount of the loans. We do not believe the possibility that some loss might occur on one or more of the six loans in the future amounts to the “probable” loss contemplated by section 2F1.1. The government has simply failed to offer any support for its calculation.
This is not a case like United States v. Johnson, 908 F.2d 396 (8th Cir.1990), where the court declined to reduce the loss calculation by the amount recovered by the defrauded bank. “[A] defendant’s offense level should not turn on whether or not the banks recovered some of their potential loan losses. Rather, the focus for sentencing purposes should be on the amount of the possible loss which Johnson attempted to inflict on the banks.” Id. at 398 (emphasis added). In Johnson, the defendant was a con artist who used falsified identification to obtain loans for herself. See also Davis, 922 F.2d at 1391-92 (the defendant operated a scheme to steal property).
The present case is more like the one where “fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract.” Schneider, 930 F.2d at 558. In Schneider, the court distinguished between two types of fraud:
“One is where the offender — a true con artist (as in Davis ) — does not intend to perform his undertaking, the contract or whatever; he means to pocket the entire contract price without rendering any service in return. In such a case the contract price is a reasonable estimate of what we are calling the expected loss, and we repeat that no more than a reasonable estimate is required. The other type of fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract (and is able to do so) and to pocket, as the profit from the fraud, only the difference between the contract price and his costs. This is such a case.”
Id. at 558 (citations omitted).
This is not to say that Mr. Smith’s crime must go unpunished. The base offense level of six provided by the Guidelines applies irrespective of loss. Guidelines § 2Fl.l(a). As the court in Schneider noted: “It is simply that the Guidelines award bonus punishment points for different levels of proven loss beginning with $2,000. The government did not earn a bonus in this case.” 930 F.2d at 559. So here, the court may only properly sentence on the basis of the base offense level of six provided by section 2Fl.l(a).
III.
Mr. Smith also appeals the four level enhancement assigned by the probation officer for his role in the offense pursuant to section 3Bl.l(a). The Guidelines provide for an increase in the offense level “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” Guidelines § 3Bl.l(a). The government does not offer support for this enhancement on appeal. Instead, like the district court’s order, the government assumes the propriety of the nine level adjustment for loss valuation and simply notes that the sentence could have been the same without the organizer enhancement, because of the requirement that the sentence could not exceed the twenty-four month maximum sentence authorized by statute for the offense of conviction. Brief of Plaintiff-Ap-pellee at 9. In its written Order, the district court stated: “Eliminating the four points assessed as a leader or organizer, the defendant’s Guideline imprisonment range would be 18-24 months.” United States v. Smith, No. CR-90-236-T at 3 (W.D.Okla. filed March 5, 1991). Given our holding above, that is no longer the case. Consequently, we review the district court’s application of Guidelines § 3Bl.l(a). Because the applicability of a guideline is an issue of law, our review is de novo. United States v. Reid, 911 F.2d 1456, 1461 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991); United States v. Pettit, 903 F.2d 1336, 1340 (10th Cir.), cert. denied, — U.S. —, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990).
Application of the enhancement for a leadership or organizational role requires consideration of the following factors:
“the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.”
Guidelines § 3B1.1, Application Note 3. The inapplicability of these criteria to the relevant conduct at issue here illustrates the inappropriateness of assigning a four level enhancement in this case. While Mr. Smith participated in obtaining each loan, there was no connection at all among the various borrowers. This was no organization. To support enhancement under this Guideline, the government must show that each member of the organization is answerable to the defendant and is under his continuing control. See Reid, 911 F.2d at 1465. Mr. Smith’s clients were not continually dependent on him. This was not “a criminal activity that involved five or more participants.” Guidelines § 3Bl.l(a). The four level enhancement was thus inappropriate.
IV.
As a result of the above analysis, we deduct thirteen levels from the district court’s calculation of Mr. Smith’s offense level. His corrected offense level is 6. With no criminal history points, the Sentencing Table provides a guideline range of zero to six months imprisonment. Mr. Smith has been incarcerated since March 26, 1991. Six months expired near the end of September, 1991.
Mr. Smith has served his maximum sentence. Consequently, we REVISE his sentence to six months and order him released immediately from custody. The mandate shall issue forthwith.
. Also included, but not at issue on appeal, were a two level enhancement for an offense involving more than minimal planning, pursuant to § 2F1.1(b)(2), and a two level reduction for acceptance of responsibility pursuant to § 3E1.1. Appendix for Appellant, vol. II, Pre-sentence Report.
. Application Note 2, Guidelines § 2B1.1, defines "loss" to mean “the value of the property taken, damaged, or destroyed.”
. Because we find no sufficient evidence of any intended loss here, we do not need to explore whether there might be some limitations on the unrestricted use of intent to establish loss.
. The loan proceeds apparently were paid to the individual borrowers rather than directly to Mr. Smith. The borrowers then used the proceeds to purchase homes from Mr. Smith. Because Mr. Smith was convicted of aiding and abetting the fraud of the borrowers, Smith is properly sentenced as a principal. See Nye & Nissen v. United States, 336 U.S. 613, 618-19, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949); United States v. Espinosa, 771 F.2d 1382, 1398 n. 18 (10th Cir.1985) (citing Nye & Nissen); Guidelines § 2X2.1. We may therefore treat him as the recipient of the fraudulently obtained loan proceeds.
. The burden on the government is not onerous, as loss does not need to be calculated with exactitude. See Guidelines § 2B1.1, Application Note 3 ("loss need not be determined with precision, and may be inferred from any reasonably reliable information available"). Moreover, to the extent that requiring the government to prove actual loss makes it a little more difficult for the government to obtain sentence enhancements under § 2F1.1, this does not seem to be cause for great concern. The government can obtain the basic sentence in any event, Guidelines § 2Fl.l(a), and if it seeks to enhance the sentence because of the size of the victim’s loss, it is not asking too much for the government to be prepared to prove the actual amount of such loss.
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
|
H
|
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.
CITY OF PHILADELPHIA et al. v. NEW JERSEY et al.
No. 77-404.
Argued March 27, 1978
Decided June 23, 1978
Stewart, J., delivered the opinion of the Court, in which BrennaN, White, Marshall, BlacKmuN, Powell, and SteveNS, JJ., joined. RehNQUist, J., filed a dissenting opinion, in which Burger, C. J., joined, ;post, p. 629.
Herbert F. Moore argued the cause for appellants. With him on the briefs was Arthur Meisel.
Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for appellees. With him on the brief were John J. Degnan, Attorney General, and Deborah Poritz and Nathan Edelstein, Deputy Attorneys General.
M. Jefferson Davis and Michael J. Hogan filed a brief for the Board of Chosen Freeholders of the County of Burlington, N. J., as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Jeffrey B. Schwartz for the American Public Health Assn.; and by William C. Brashares for the National Solid Wastes Management Assn.
Mr. Justice Stewart
delivered the opinion of the Court.
A New Jersey law prohibits the importation of most “solid or liquid waste which originated or was collected outside the territorial limits of the State . . . In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.
I
The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides:
“No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner '[of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.” N. J. Stat. Ann. §13:17-10 (West Supp. 1978).
As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State. Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.
Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs’ motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, Hackensack Meadowlands Development Comm’n v. Municipal Sanitary Landfill Auth., 127 N. J. Super. 160, 316 A. 2d 711, and reversed, 68 N. J. 451, 348 A. 2d 505. It found that eh. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U. S. C. § 3251 et seg., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.
The plaintiffs then appealed to this Court. After noting probable jurisdiction, 425 U. S. 910, and hearing oral argument, we remanded for reconsideration of the appellants’ preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U. S. 141. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 562, 376 A. 2d 888, and again we noted probable jurisdiction, 434 U. S. 964. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation. The dispositive question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.
II
Before it addressed the merits of the appellants’ claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is “commerce” at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.
The state court expressed the view that there may be two definitions of “commerce” for constitutional purposes. When relied on “to support some exertion of federal control or regulation,” the Commerce Clause permits “a very sweeping concept” of commerce. 68 N. J., at 469, 348 A. 2d, at 514. But when relied on “to strike down or restrict state legislation,” that Clause and the term “commerce” have a “much more confined . . . reach.” Ibid.
The state court reached this conclusion in an attempt to reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they “are not legitimate subjects of trade and commerce.” Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 489. These articles include items “which, on account of their existing condition, ■'would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.” Ibid. See also Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 525, and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. 2, supra, banned only “those wastes which can [not] be put to effective use,” and therefore those wastes were not commerce at all, unless “the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision.” 68 N. J., at 468, 348 A. 2d, at 514.
We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles “are not legitimate subjects of trade and commerce,” the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court’s suggestion that the banning of “valueless” out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 802-814; Meat Drivers v. United States, 371 U. S. 94.
Ill
A
Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 185. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 440. The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 537-538:
“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U. S. [511], 527, what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”
The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, Inc., v. Du Mond, supra; Toomer v. Witsell, 334 U. S. 385, 403-406; Baldwin v. G. A. F. Seelig, Inc., supra; Buck v. Kuykendall, 267 U. S. 307, 315-316. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders. Cf. Welton v. Missouri, 91 U. S. 275. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U. S. 137, 142:
“Where the 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. . . . 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.”
See also Raymond Motor Transportation, Inc. v. Rice, supra, at 441-442; Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 352-354; Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 371-372.
The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.
B
The purpose of ch. 363 is set out in the statute itself as follows:
“The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited.”
The New Jersey Supreme Court accepted this statement of the state legislature’s purpose. The state court additionally found that New Jersey’s existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that “the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes.” 68 N. J., at 460-465, 348 A. 2d, at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State’s economy, but its environment, and that its substantial benefits outweigh its “slight” burden on interstate commerce. Id., at 471-478, 348 A. 2d, at 515-519.
The appellants strenuously contend that ch. 363, “while outwardly cloaked fin the currently fashionable garb of environmental protection/ ... is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents . . . They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites.
The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, “[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste.” Noting that New Jersey landfill operators are among the plaintiffs, the appellee’s brief argues that “[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large.”
This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents’ pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State’s remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination.
The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. O. A. F. Seelig, Inc., 294 U. S., at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S., at 403-404; or to preserve the State’s financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U. S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.
Also relevant here are the Court’s decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located -within its borders. West v. Kansas Natural Gas Co., 221 U. S. 229; Pennsylvania v. West Virginia, 262 U. S. 553. These cases stand for the basic principle that a “State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” Foster-Fountain Packing Co. v. Haydel, supra, at 10.
The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.
The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G. A. F. Seelig, Inc., supra, at 525; Bowman v. Chicago & Northwestern R. Co., 125 U. S., at 489. In the appellees’ view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.
It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U. S. 251; Reid v. Colorado, 187 U. S. 137; Bowman v. Chicago & Northwestern R. Co., supra, at 489. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.
The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey’s remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.
Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is
Reversed.
New Jersey enacted a Waste Control Act, N. J. Stat. Ann. § 13:1/-1 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner.
Effective as of February 1974, these regulations provided as follows:
“ (a) No person shall bring into this State, or accept for disposal in this State, any solid or liquid waste which originated or was collected outside the territorial limits of this State. This Section shall not apply to:
“1. Garbage to be fed to swine in the State of New Jersey;
“2. Any separated waste material, including newsprint, paper, glass and metals, that is free from putrescible materials and not mixed with other solid or liquid waste that is intended for a recycling or reclamation facility;
“3. Municipal solid waste to be separated or processed into usable secondary materials, including fuel and heat, at a resource recovery facility provided that not less than 70 per cent of the thru-put of any such facility is to be separated or processed into usable secondary materials; and
“4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semi-liquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State.” N. J. Admin. Code 7:1-4.2 (Supp. 1977).
The decision of the New Jersey Supreme Court disposed of the appellants’ pre-emption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court.
The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Discovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U. S. C. § 6901 et seq. (1976 ed.).
From our review of this federal legislation, we find no “clear and manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230, to pre-empt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U. S. 519, 530-531, or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U. S. 624, 633. To the contrary, Congress expressly has provided that “the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies . . . .” 42 U. S. C. §6901 (a)(4) (1976 ed.). Similarly, ch. 363 is not pre-empted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U. S. 151, 158; Jones v. Rath Packing Co., supra, at 540-541. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation.
U. S. Const., Art. I, § 8, cl. 3.
We express no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, compare Douglas v. Seacoast Products, Inc., 431 U. S. 265, 283-287, with id., at 287-290 (Rehnquist, J., concurring and dissenting); Toomer v. Witsell, 334 U. S. 385, 404; or New Jersey’s power*to spend state funds solely on behalf of state residents and businesses, compare Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 805-810; id., at 815 (SteveNS, J., concurring), with id., at 817 (BeeNNAN, J., dissenting). Also compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 187, with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 783.
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_erron
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In the Matter of Banque de Financement, S. A., Debtor. BANQUE de FINANCEMENT, S. A., Appellant, and Firestone Tire and Rubber Company, Intervenor in support of Appellant, v. The FIRST NATIONAL BANK OF BOSTON, and The Chase Manhattan Bank, N. A., Appellees.
No. 447, Docket 76-5026.
United States Court of Appeals, Second Circuit.
Argued Dec. 17, 1976.
Decided Aug. 30, 1977.
Paul B. Bergman, New York City (Ford Marrin Esposito Witmeyer & Bergman, New York City, on the brief), for debtor-appellant Banque de Financement, S. A.
James C. Blair, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, on the brief), for intervenor Firestone Tire & Rubber Company in support of appellant.
Thomas A. Shaw, Jr., New York City (Thomas H. Walsh, Jr., and Breed, Abbott & Morgan, New York City, on the brief), for appellee The First National Bank of Boston.
Peter A. Copeland, New York City (Mil-bank, Tweed, Hadley & McCloy, New York City, on the brief), for appellee The Chase Manhattan Bank, N. A.
Before MULLIGAN, TIMBERS and VAN GRAAFEILAND, Circuit Judges.
TIMBERS, Circuit Judge:
On this appeal from a judgment entered July 29, 1976 in the Southern District of New York, Robert J. Ward, District Judge, affirming an order entered January 13, 1976 by Roy Babitt, Bankruptcy Judge, which dismissed as improvidently filed the debtor’s petition under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970), the essential question is whether under the circumstances of this case it was appropriate for the bankruptcy court to exercise its inherent power to dismiss a Chapter XI petition as improvidently filed. We hold it was not. We reverse and remand with instructions.
I. FACTS
Debtor-appellant Banque de Financement, S. A. (Finabank) is a Swiss banking corporation. It neither does business nor maintains any office in the United States. In late December 1974 Finabank sustained a $46,000,000 loss when Edilcentro International Ltd. (Edilcentro), a Bahamian subsidiary of an Italian banking corporation, Societa Generale Immobiliare (SGI), defaulted on certain outstanding foreign exchange contracts with Finabank. This precipitated Finabank’s insolvency. On January 10, 1975 Finabank filed with the Court of Justice of the Canton of Geneva a petition for a “sursis bancaire”, or postponement of maturity. Under the applicable Swiss statute the filing of this petition resulted in an interlocutory moratorium period and the appointment by the Court. of Justice on January 20, 1975 of a provisional commissioner, FIDES Societe Fiduciare (FIDES), a Swiss accounting corporation, to review Finabank’s affairs and determine the feasibility of rehabilitation.
After the appointment of FIDES as provisional commissioner, Finabank’s Swiss counsel entered into negotiations with SGI with a view to settling Edilcentro’s obligation to Finabank. Until mid-May 1975 counsel entertained a serious hope that the negotiations would result in a recovery sufficient to permit Finabank to effect a successful reorganization and reenter the banking business. But then the outlook became discouraging. As a result on June 19 Finabank withdrew its January 10 petition for a “sursis bancaire” and substituted a petition for a “sursis concordataire”, a banking moratorium. The Court of Justice granted this petition on July 14.
This action did not necessarily foreclose Finabank’s rehabilitation. The “sursis concordataire” moratorium procedure contemplated either rehabilitation or liquidation depending on subsequent events. Accordingly the Court of Justice, in its opinion of July 14 which explicitly recognized the possibility of successful reorganization, appointed two additional commissioners to serve with FIDES and directed the commissioners to take the steps necessary to effect an arrangement with Finabank’s creditors.
Thereafter matters stood in abeyance while another round of negotiations was conducted with SGI. On July 9, 1976 the commissioners, having determined that no rehabilitation could be expected, filed a petition for a “concordat par abandon d’actifs”, a court-supervised liquidation. The Court of Justice ordered Finabank’s liquidation in December 1976.
Backing up for a moment to the time of Finabank’s insolvency in December 1974, we turn to the events in the United States which resulted in the instant Chapter XI petition.
Finabank had $12,500,000 on deposit at Continental Bank International (CBI) in New York City at the time Edil centro defaulted. The Edilcentro default caused Finabank in turn to default on its foreign exchange contracts with appellees The First National Bank of Boston (FNBB) and The Chase Manhattan Bank, N. A. (Chase). In January 1975 FNBB and Chase commenced separate breach of contract actions against Finabank in the Southern District of New York. FNBB claimed $9,176,375, Chase $491,000. In these actions both banks obtained orders of attachment in the amounts claimed. Chase levied on January 6, FNBB on January 20, the dates the respective actions were commenced.
On May 5, only a few hours before the expiration of the four month limitation period provided for the avoidance of a preferential transfer by Bankruptcy Act § 60a(l), 11 U.S.C. § 96(a)(1) (1970), with respect to the Chase attachment, Finabank filed a petition for an arrangement under Chapter XI. There followed a series of protracted proceedings which resulted in Judge Babitt’s order of January 13, 1976 granting the motions by FNBB and Chase to dismiss the petition. Finabank had requested the bankruptcy court to bide its time in the hope that a plan of rehabilitation could be effected in Switzerland; and that such plan, if submitted and approved in the Chapter XI proceeding, would result in the joint administration of all assets of Finabank. But nothing came of the negotiations with SGI during the summer and fall of 1975. Finabank was unable to submit to the bankruptcy court a plan of arrangement, the confirmation of which of course is the objective of a Chapter XI proceeding. At hearings held on June 10, July 8, and August 19, Judge Babitt expressed growing doubt as to whether Finabank ever would be able to obtain rehabilitation in the bankruptcy court. Finabank’s counsel responded to the judge’s queries with a realistic assessment of Finabank’s proceedings in Switzerland; he stated that, while a plan still might be formulated successfully, only a “slim” likelihood remained. On August 19 the judge ordered Finabank to file its plan of arrangement by September 3. No plan was filed by that date. Thereafter four further extensions were granted but no plan was ever filed.
Finabank’s inability to submit a plan of arrangement was not its only difficulty in the bankruptcy court. Among other things, its petition failed to include a complete list of creditors as required by Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), and Bankruptcy Rule ll-ll(b). Finabank did disclose the names of those foreign and domestic banks which were its creditors. But, constrained by the Swiss banking secrecy laws and their criminal penalties, it included neither the names nor the addresses of its individual depositors. According to FNBB’s expert on Swiss law, the Swiss banking secrecy laws “effectively prohibit . . . Finabank . . from furnishing to a foreign court, or from directly or indirectly making public, the names and addresses of its depositors or creditors or divulging information concerning their dealings with Finabank, even after the filing of a plan for composition with creditors or a bankruptcy.” Finabank does not dispute this.
In his opinion of January 12, 1976 granting the motion of FNBB and Chase to dismiss the Chapter XI petition, Judge Babitt rested his decision on two grounds. First, he held that Finabank was a “banking corporation” within the meaning of Bankruptcy Act § 4a, 11 U.S.C. § 22(a) (1970), which could not seek relief under the Bankruptcy Act. Second, with respect to Finabank’s default in filing a plan and its failure to file a complete list of creditors, the judge concluded that because “this Chapter XI cannot comply with the most elementary and preliminary provisions of the Act, much less with successful end result,” there was “neither purpose to achieve the desired result nor likelihood of doing so.” Accordingly the judge granted the motion to dismiss in the exercise of the bankruptcy court’s inherent power to dismiss a Chapter XI petition where no prospect of rehabilitation appears, citing Ira Haupt & Co. v. Klebanow, 348 F.2d 907 (2 Cir. 1965) (per curiam). See also SEC v. United States Realty and Improvement Co., 310 U.S. 434 (1940).
On Finabank’s petition to review the order of the bankruptcy court, Judge Ward in his opinion of July 28, 1976 affirmed the dismissal of the petition. By the time Finabank’s petition to review was heard, the first ground upon which the bankruptcy court had rested its decision had become foreclosed by our decision of May 25, 1976 in In re Israel-British Bank (London), Ltd., 536 F.2d 509 (2 Cir.), cert. denied, sub. nom. Bank of the Commonwealth v. Israel-British Bank (London) Ltd., et al., 429 U.S. 978 (1976), which held that a foreign bank is not a “banking corporation” within the meaning of Bankruptcy Act § 4a. Judge Ward affirmed the bankruptcy court on its second ground, holding that it properly had exercised its discretion in dismissing the petition. From the judgment entered on Judge Ward’s opinion, Finabank has taken this appeal.
II. BANKRUPTCY COURT’S INHERENT POWER TO DISMISS A CHAPTER XI PETITION
The “inherent power” upon which the bankruptcy court relied in dismissing Finabank’s petition draws in question the debt- or’s good faith in petitioning for relief under Chapter XI. The Supreme Court’s decision in SEC v. United States Realty and Improvement Co., supra, is the principal source of authority. There, relying on the equitable principles which temper the exercise of jurisdiction by the bankruptcy court, the Court implied a power to dismiss a Chapter XI petition so as to remit the debt- or to more appropriate relief under Chapter X. See also Mecca Temple of Ancient Arabic Order of Nobles of Mystic Shrine v. Darrock, 142 F.2d 869 (2 Cir.), cert. denied, 323 U.S. 784 (1944). In Ira Haupt & Co. v. Klebanow, supra, we applied the United States Realty principle to a Chapter XI petition which had been filed without hope of rehabilitation where the dismissal had the effect of remitting the debtor to straight bankruptcy.
Broad as such inherent power is, the circumstances under which it may be invoked are limited by the express terms of the Bankruptcy Act. Cf. SEC v. United States Realty and Improvement Co., supra, 310 U.S. at 455. Specifically, most dismissals prompted by circumstances which arise after the filing of the petition — such as failure to file the required statements and schedules or to submit a plan — are subject to the provisions of Bankruptcy Act § 376, 11 U.S.C. § 776 (1970), and Bankruptcy Rule 11-42(b). These provisions differ from an inherent power dismissal in that they permit dismissal or adjudication only after hearing on notice to the debtor and creditors, subject to the requirement that the action be in “the best interest of the estate.” See 8 Collier on Bankruptcy ¶ 4.12, at 414 n. 2 (Moore ed. 1976).
The bankruptcy court here rested the exercise of its inherent power on two grounds — that the “sole purpose” of the proceeding was to frustrate the creditors’ attachments rather than to formulate an arrangement, and that the debtor had failed to file a complete list of creditors. We turn now to an examination of each of these two grounds in the light of the general principles set forth above.
(A) No Intention to Effect Rehabilitation
In finding that Finabank never intended to pursue the Chapter XI proceeding to obtain confirmation of a plan of arrangement, the bankruptcy court looked to events — e. g., Finabank’s multiple defaults in filing a plan and its counsel’s concessions regarding the likelihood of rehabilitation— which occurred after the petition was filed on May 5, 1975. Although such post-filing events may be probative of an absence of intent to seek an arrangement at the time of filing, see In re Tinkoff, 85 F.2d 305, 307, 309 (7 Cir. 1936), they fall short of supporting the bankruptcy court’s exercise of inherent power in the instant case.
In filing its Chapter XI petition Finabank instituted a proceeding which in effect was ancillary to the pending moratorium in Switzerland. As a result its motivations and expectations on May 5 and its alleged dilatory conduct thereafter cannot be determined without reference to events in Switzerland. On May 5 the Swiss provisional commissioner was still in the process of determining the feasibility of a “sursis bancaire”. Success in its negotiations with SGI was the critical objective. Finabank’s Swiss counsel claims to have had hopes of success as of May 5. Possible rehabilitation remained a generally recognized possibility even after the “sursis concordataire” substitution of June 19. Not until July 1976— more than a year later — was all hope formally abandoned. Since, as a practical matter, rehabilitation in the United States depended upon the approval of a plan in Switzerland, Finabank realistically had no choice but to delay the filing of a plan of arrangement in the bankruptcy court.
We do not take issue with the bankruptcy court’s finding that the need to frustrate the attachments caused Finabank to file its Chapter XI petition. But that alone does not establish an absence of intent to seek rehabilitation. And, in view of the objective of the Bankruptcy Act of insuring equal distribution of assets among general creditors, such filings should not be discouraged, even under Chapter XI. See In re Israel-British Bank (London) Ltd., supra, 536 F.2d at 513. '
It also must be borne in mind that Finabank, in seeking relief under the Bankruptcy Act in aid of its Swiss proceeding, had no practical alternative to a Chapter XI petition. Straight bankruptcy would have conflicted with the Swiss rehabilitation proceeding.
We conclude that the bankruptcy court was clearly erroneous, see Bankruptcy Rule 810, in finding that Finabank never intended to pursue its Chapter XI proceeding for purposes of rehabilitation. We hold therefore that the first ground of the bankruptcy court’s inherent power dismissal lacked the necessary underpinning.
(B) Incomplete List of Creditors
This brings us to the second ground of the bankruptcy court’s inherent power dismissal — Finabank’s failure to file a complete list of creditors pursuant to Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), and Rule ll-ll.
The requirement with which Finabank found itself unable to comply is phrased in mandatory terms: Under Rule ll-ll(a), “The debtor shall file with the court schedules of all his debts. . . . ” (emphasis added). See also Bankruptcy Act § 7a(8), 11 U.S.C. § 25(a)(8) (1970) (scheduling requirement for straight bankruptcy); 1A Collier on Bankruptcy, supra, ¶ 7.08[2], at 984. These provisions have been construed to mean what they say. E. g., In re Everick Art Corp., 39 F.2d 765, 767 (2 Cir. 1930); In re Semel, 411 F.2d 195 (3 Cir.), cert. denied, 396 U.S. 905 (1969); Carolina Motor Express Lines, Inc. v. Blue & White Service, Inc., 192 F.2d 89, 92 (7 Cir. 1951). We know of no instance where a bankrupt has been excused from this filing requirement. The question presented by Finabank’s having filed only a partial list of creditors therefore is less one of the bankruptcy court’s inherent power to dismiss the petition than one of its ability to proceed at all once it became clear that Finabank was not able to disclose the identities and claims of its individual depositors.
The reason for the Bankruptcy Act’s mandatory language and the uniform application of it by the courts is obvious. The list of creditors is necessary to the conduct of the bankruptcy proceeding because it (1) gives the court information as to persons entitled to notice; (2) informs the court of the claims against the estate and the considerations upon which they rest; and (3) limits to the particular proceeding the effeet of the discharge of the bankrupt. 1A Collier on Bankruptcy, supra, ¶ 7.11[2], at 990.
If this were all that is involved, we could terminate our inquiry at this point and simply hold that Finabank is to be left impaled on its inability to comply with the requirement that it file a complete list of creditors and thus be denied any Chapter XI relief. There are substantial countervailing considerations however which impel us to hold otherwise.
Finabank, for the specific purpose of avoiding preferential attachments, has invoked our Bankruptcy Act to obtain an administration of assets located in this country ancillary to an administration of assets located in its foreign domicile. This type of proceeding is contemplated explicitly by Bankruptcy Act § 2a(l), 11 U.S.C. § 11(a)(1) (1970). That section, by providing a jurisdictional underpinning in property located in this country, fosters in international situations one of the basic purposes of the Act, i. e. equal distribution among creditors. The Act also permits the United States segment of such an international proceeding, whether a reorganization or a straight bankruptcy, to function essentially as an instrument to set aside preferences. Under § 2a(22), 11 U.S.C. § ll(a)(22) (1970), and Bankruptcy Rule 119, the bankruptcy court may exercise its discretion to dismiss the proceeding, or, after setting aside any preferences, to suspend the proceeding and permit assets located in this country to be administered pursuant to the domiciliary proceeding.
Recently, in construing § 4a of the Act, we stressed the importance of promoting the goal of equality of distribution of assets in the international context. In re Israel-British Bank (London) Ltd., supra, 536 F.2d at 513. In our view, achievement of this goal, contemplated specifically in §§ 2a(l) and 2a(22), requires in the instant case, first, recognition of the fact that international bankruptcies can raise problems not contemplated by the Act, and then, some flexibility in responding to those problems consistent with the strong public policy which is at the core of the Act. Cf. Nadelmann, Compositions — Reorganizations and Arrangements — In The Conflict of Laws, 61 Harv.L.Rev. 804, 835 (1948).
Flexibility in the international context of course should not come at the expense of the orderly administration of the Act. Ordinarily the scheduling requirements must take precedence even if preferences thereby are allowed to survive. Otherwise the administrative and equitable purposes of the scheduling requirements themselves would be frustrated.
The instant case however is not an ordinary one. Aside from the policy considerations mentioned above, it differs in two material respects from those cases in which the requirement of a complete list of creditors has been strictly enforced. The debtors in those cases all sought relief from that requirement either without giving any compelling reason why they should be relieved from the statutory burden of producing the information or without offering any substitute means of satisfying the purpose of the requirement. At the evidentiary hearing on the remand which we order here, Finabank may be able to comply in both respects.
As for Finabank’s reason for seeking relief from the creditors list requirement, its purpose is not to obtain some advantage over its creditors. It seeks to protect them. Nor is it attempting to pass on to a trustee the task of straightening out badly kept records. Finabank is constrained by the criminal law of its domicile.
As for a substitute to satisfy the creditors list requirement, since this is a bankruptcy proceeding in aid of a corresponding proceeding abroad, a list of creditors does exist. According to Finabank, the identities and claims of the secret depositors are in the possession of the Swiss court. It suggests two possible ways of coordinating the proceeding in this country with that in Switzerland to achieve the substantial equivalent of a complete list of creditors. First, § 2a(22) and Rule 119 might be utilized. The bankruptcy court would take jurisdiction, set aside the attachments, and then suspend the proceeding and permit the assets located in this country to be administered in the Swiss proceeding. Under the second alternative, there would be a full administration in this country, coordinated with the Swiss proceeding. The Swiss court would notify the depositors who then would elect whether to appear in the proceeding here. Pro rata distribution would be achieved eventually by marshalling of assets in Switzerland which would take into account the recoveries of the creditors who appear here.
We do not pass on the viability of these alternatives at this stage. Both require further factual and legal development upon remand. See note 18 supra. Suffice it to say that Finabank has proposed alternatives to the list of creditors which on their face appear to have a fair chance of satisfying the objectives of that requirement. But the bankruptcy court did not consider them.
We hold that neither § 324(1) nor Rule 11-11 preclude consideration of such alternatives in this case. The problem here is novel and was not contemplated by the drafters of the scheduling requirements. This is so because the provisions which appear to be in conflict here came into the Bankruptcy Act by different routes. Proceedings in this country ancillary to foreign bankruptcies first were made possible under the 1898 Act. See Nadelmann, The National Bankruptcy Act and The Conflict of Laws, 59 Harv.L.Rev. 1025, 1035-39 (1946). The requirement of a list of creditors long predates the 1898 Act; it was carried over from predecessor statutes. See Bankruptcy Act of 1867, ch. 176, § 11, 14 Stat. 517; In re Hall, 11 F.Cas. 201 (N.D.N.Y.1868) (No. 5,922); In re Plimpton, 19 F.Cas. 874 (S.D. N.Y.1842) (No. 11,227). Far from being intended by the drafters, the result of strict enforcement of the scheduling requirements in this case would be anomalous. A rule intended to protect creditors would be applied to foreclose equal distribution of the assets among creditors in a situation where the objectives of the rule might well be satisfied by other means. In our view the scheduling requirements should be construed, under the unusual circumstances of this case and depending upon the further evidence adduced upon remand, to prevent the anomalous result which otherwise would occur.
We hold that Finabank’s petition was not inherently defective at the time it was filed and that the dismissal under the inherent power of the bankruptcy court was error.
III. OTHER ASSERTED GROUNDS FOR DISMISSAL
(A) Bankruptcy Act § 2a(22) and Rule 119 FNBB urges as an alternate ground to sustain the dismissal of the petition the bankruptcy court’s discretion under § 2a(22) and Rule 119. It relies on the provision of the Rule that suspension or dismissal be considered with “regard to the rights and convenience of local creditors.” It contends that the “rights” protected by the dismissal were preferential claims of FNBB and Chase pursuant to their attachments, together with the claims which two other American parties had interposed in CBI’s interpleader action. See note 3 supra. The bankruptcy court agreed with this view of the meaning of local creditors’ “rights”, citing Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 582 (1908), for the proposition that a country “first protect[s] the rights of its citizens in local property before permitting it to be taken out of the jurisdiction for administration in favor of those residing beyond its borders.” The district court, which also agreed, added that the dismissal would permit the Americans to recover “without having to rely on Swiss bankruptcy procedures which are enmeshed with the Swiss bank secrecy laws.” We disagree with this construction of § 2a(22) and Rule 119.
Section 2a(22) was not intended to be the instrument by which jurisdiction over a foreign domiciliary grounded in § 2a(l) could be undercut for the purpose of validating preferential transfers to United States nationals. Section 2a(22) was enacted as an administrative reform. It was designed to avoid needless duplication of effort by courts and creditors in those cases where an ancillary proceeding in this country could be coordinated with or entirely dismissed in favor of a domiciliary proceeding abroad. See S.Rep.No. 1954, 87th Cong., 2d Sess. (1962), reprinted in [1962] U.S.Code Cong. & Ad.News 2603; H.R. Rep.No. 1208, 87th Cong. 1st Sess. (1961). The construction of local “rights” most consonant with this objective was suggested by Professor Nadelmann nearly' thirty years ago. In exercising its discretion the district court is to guard against forcing American creditors to participate in foreign proceedings in which their claims will be treated in some manner inimical to this country’s policy of equality. See Nadelmann, Compositions — Reorganizations and Arrangements — In the Conflict of Laws, 61 Harv.L. Rev. 804, 829-30 (1948); Revised Report of The National Bankruptcy Conference Special Committee on Insurance Companies and Foreign Banks, at 12, 13-14 (1976).
We hold that the construction of § 2a(22) urged by FNBB would impose a substantive impact on § 2a(l) which Congress did not intend, and that neither § 2a(22) nor Rule 119 support the bankruptcy court’s dismissal.
(B) Bankruptcy Act § 376 and Rule 11— 42(b).
The circumstances upon which the bankruptcy court relied in exercising its inherent power — Finabank’s repeated defaults in filing a plan and its failure to file a complete list of creditors — could constitute grounds for dismissal “for want of prosecution” under Rule ll-42(b)(l). Advisory Committee’s Note to Bankruptcy Rule ll-42(b). But Rule ll-42(b) imposes the substantive requirement that the dismissal be in the “best interest of the estate” —a matter upon which the bankruptcy court did not rule.
It of course would be inappropriate for us to rule upon such an issue until the courts below have an opportunity to do so. Having held that the bankruptcy court erred in dismissing the petition pursuant to its inherent power, we note only that the dismissal in any event may not be sustained by the retrospective application of Rule 11-42(b). The “best interests]” to be considered are those of the debtor and the creditors. Advisory Committee’s Note to Bankruptcy Rule 11-42(b); 9 Collier on Bankruptcy, supra, ¶ 10.03[2], at 520 & n. 5. In view of the existence of alternative courses of action, dismissal of the petition at the stage of the proceedings at which the bankruptcy court acted in itself would be questionable. Of the entire group of unsecured creditors, only the interests of FNBB and Chase would be served. Here the best interests of the estate for purposes of Rule ll-42(b) and the general principle of equality among creditors appear to coalesce.
IV. PROCEEDINGS ON REMAND
We reverse the judgment dismissing the petition and remand the case to the district court with instructions to refer the case to the bankruptcy court for an evidentiary hearing on the present viability of an administration under the Bankruptcy Act in this country. We were advised at the argument of the instant appeal that Finabank went into liquidation in Switzerland during the pendency of this appeal. Earlier questions regarding Finabank’s failure to file a plan therefore appear to be moot. The problem presented by the Swiss banking secrecy laws however remains alive. The bankruptcy court should ascertain what those laws require at this stage of the proceedings. If they are applicable, the court should consider, in accordance with this opinion, the alternative procedures suggested by the parties to ascertain whether they satisfactorily fulfill the function of the list of creditors.
Reversed and remanded with instructions.
. The rehabilitation contemplated by this procedure under Swiss law occurs out of court and entails the payment of all debts in full.
. As of May 31, 1975 Finabank had liabilities of Swiss Fr. 188,021,614.62 and assets of Swiss Fr. 98,361,001. According to the July 14 opinion of the Court of Justice, “the unprotected amount of about Swiss Fr. 90 million shown by the balance-sheet ... is indisputably due to the nonfulfillment by Edilcentro ... of its engagements . . . The court concluded that “all things considered ... a liquidation by a proceeding of arrangement with creditors is likely to produce results which are more advantageous to creditors than a liquidation through bankruptcy proceedings.”
. On January 21, CBI commenced an inter-pleader action to obtain adjudication of the rights of various claimants to certificates of deposit and other funds which CBI was holding for the account of Finabank. Continental Bank International v. Banque de Financement, S.A., 75 Civ. 299 (S.D.N.Y.). The contract actions by FNBB and Chase against Finabank were consolidated with the interpleader action on September 19, 1975.
In the consolidated action FNBB and Chase claim priority based on their attachments. Two other American parties have filed claims totalling $298,803. Several foreign corporations and individuals have filed claims totalling several million dollars. Finabank as a party to the interpleader action claims that $11,000,000 of its account with CBI “represents trust assets held by Finabank as custodian” which are not “a potential pool asset for Finabank’s general creditors.”
. FNBB’s motion of June 26, 1975 to dismiss the Chapter XI petition claimed that the petition was deficient in the following additional respects: (1) the schedules of debts, property and executory contracts and the statement of affairs failed to satisfy the requirements of Rule 11-11(a) and Bankruptcy Forms 6 and 8; (2) the allegations required by Bankruptcy Act § 323, 11,U-S.C. § 723 (1970), were lacking; (3) Exhibit A under Bankruptcy Form 11-F1 was lacking; and (4) FIDES had no authority to file the petition.
Judge Babitt noted but did not pass on these claims.
. We do not hold that the inherent power of the bankruptcy court never may be relied upon for a dismissal based on facts which arise after the filing of the petition. Normally, of course, such a situation would be covered by Rule 11-42. After a good faith filing, a rehabilitation that subsequently becomes hopeless would manifest itself in grounds for dismissal — such as failure to propose a plan or withdrawal or abandonment of a plan — which would fall squarely within Rule 11-42.
. Bankruptcy Act § 376, 11 U.S.C. § 776 (1970), in relevant part provides:
“If the statement of the executory contracts and the schedules and statement of affairs, as provided by paragraph (1) of section 724 of this title, are not duly filed, or if an arrangement is not proposed in the manner and within the time fixed by the court, or if an arrangement is withdrawn or abandoned prior to its acceptance, or is not accepted at the meeting of creditors or within such further time as the court may fix, or if the money or other consideration required to be deposited is not deposited, or the application for confirmation is not filed within the time fixed by the court, or if confirmation of the arrangement is refused, the court shall—
* sb *
(2) where the petition was filed under section 722 of this title, enter an order, upon hearing after notice to the debtor, the creditors, and such other persons as the court may direct, either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title or dismissing the proceeding under this chapter, whichever in the opinion of the court may be in the interest of the creditors: Provided, however, That an order adjudging the debtor a bankrupt may be entered without such hearing upon the debtor’s consent.”
. Bankruptcy Rule ll-42(b) in relevant part provides:
“(b) Dismissal or Conversion to Bankruptcy for Want of Prosecution, Denial or Revocation of Confirmation, Default, or Termination of Plan. The court shall enter an order, after hearing on such notice as it may direct, dismissing the case, or adjudicating the debt- or a bankrupt if he has not been previously so adjudged, or directing that the bankruptcy case proceed, whichever may be in the best interest of the estate—
(1) for want of prosecution; or
(2) for failure to comply with an order under Rule 11-20(d) for indemnification; or
(3) if confirmation of a plan is denied; or
(4) if confirmation is revoked for fraud and a modified plan is not confirmed pursuant to Rule 11-41; or
(5) where the court has retained jurisdiction after confirmation of a pian:
(A) if the debtor defaults in any of the terms of the plan; or
(B) if a plan terminates by reason of the happening of a condition specified therein.
The court may reopen the case, if necessary, for the purpose of entering an order under this subdivision.”
. Under its inherent power, by contrast, the bankruptcy court may act sua sponte, without giving notice. See In re Ettinger, 76 F.2d 741 (2 Cir. 1935).
. Bankruptcy Act § 324(1), 11 U.S.C. § 724(1) (1970), in relevant part provides:
“Statements and fees accompanying petition. The petition shall be accompanied by—
(1) a statement of the executory contracts of the debtor, and the schedules and statement of affairs, if not previously filed: Provided, however, That if the debtor
Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. UNION PACIFIC RAILROAD CO.
No. 97.
Argued January 23, 1957.
Decided April 8, 1957.
Solicitor General Rankin argued the cause for the United States. With him on the brief were Assistant Attorney General Morton, Roger P. Marquis and Fred W. Smith.
William W. Clary argued the cause for respondent. With him on the brief were Louis W. Myers, Warren M. Christopher, John U. Loomis, W. R. Rouse and /. H. Anderson.
Mr. Justice Douglas
delivered the opinion of the Court.
This is an action brought in the District Court by the United States to enjoin the Union Pacific Railroad Company from drilling for oil and gas on “the right of way” granted it by § 2 of the Act of July 1, 1862, 12 Stat. 489, 491, for the construction of a railroad and telegraph line. The claim of the United States is that “the right of way” granted by the Act is not a grant that includes mineral rights. The District Court’s decision was adverse to the United States. 126 F. Supp. 646. The Court of Appeals affirmed. 230 F. 2d 690. The case is here on a petition for a writ of certiorari which we granted in view of the public importance of the question presented. 352 U. S. 818.
The “right of way” which was granted by § 2 of the Act was “for the construction of said railroad and telegraph line.” As an aid to the construction of the railroad, “every alternate section of public land” on each side of the road was also granted. § 3. Section 3 further provided “That all mineral lands shall be excepted from the operation of this act . . . .” (Italics added.)
On the face of the Act it would seem that the use of the words “the right of way” describes a lesser interest than the grant of “public land.” Moreover, this right of way was granted Union Pacific “for the construction of said railroad and telegraph line.” § 2. That purpose is not fulfilled when the right of way is used for other purposes. See Northern Pacific R. Co. v. Townsend, 190 U. S. 267, 271. It would seem that, whatever may be the nature of Union Pacific's interest in the right of way, drilling for oil on or under it is not a railroad purpose within the meaning of § 2 of the Act.
It would also seem from the words of the Act that, whatever rights may have been included in “the right of way,” mineral rights were excepted by reason of the proviso in § 3 excepting “mineral lands.” The exception of “mineral lands,” as applied to the right of way, may have been an inept way of reserving mineral rights. The right of way certainly could not be expected to take all the detours that might be necessary were it to avoid all lands containing minerals. But that the proviso applies to § 2 as well as to § 3 is plain. While the grant of “the right of way” is made by § 2 and the exception of “mineral lands” is contained in § 3, the exception extends not merely to § 3 but to the entire Act.
It is said that the exception in § 3 was in terms made applicable to the entire Act merely to leave no doubt that land grants to other railroads, contained in §§ 9, 13 and 14 of the Act, were not to include “mineral lands.” But the exception in § 3 is not limited merely to a few enumerated sections any more than it is limited to § 3. The proviso makes sense if it is read to reserve all mineral rights under the right of way, as well as to reserve mineral lands in the alternate sections of public land granted in aid of the construction of the road. Indeed, we can see no other way to construe it if it is to apply, as it does, not merely to § 3, but to the entire Act, including § 2 which grants the right of way.
The reservation of the mineral resources of these public lands for the United States was in keeping with the policy of the times. The gold strike in California in 1848 made the entire country conscious of the potential riches underlying the western part of the public domain. The method of asserting federal control over mineral lands was not finally settled until the Act of July 26, 1866, 14 Stat. 251, prescribed the procedure by which mineral lands could be acquired. But meanwhile — from 1849 to 1866 — the federal policy was clear. As the Court said in Mining Co. v. Consolidated Mining Co., 102 U. S. 167, the federal policy during this interim period was to reserve mineral lands, not to grant them. The policy was found to be so “uniform” in this interim period (id., at 175) that the Court, in construing an 1853 Act governing public lands in California, held that a grant to California did not include mineral lands, although they were not specifically excepted.
The case is much stronger here, for “mineral lands” are specifically reserved. It is, therefore, wholly in keeping with the federal policy that prevailed in 1862, when the present right of way was granted, to construe “mineral lands” to include mineral resources under the right of way. For it was the mineral riches in the public domain that Congress sedulously sought to preserve until it formulated the special procedure by which all mineral resources were to be administered. In United States v. Sweet, 245 U. S. 563, Mr. Justice Van Devanter, our foremost expert on public land law, discussed this policy at length and cited in support of this federal policy the very Act we have under consideration in the present case. Id., p. 569, n. 1. And see Barden v. Northern Pacific R. Co., 154 U. S. 288, 317-318. We would have to forget history and read legislation with a jaundiced eye to hold that when Congress granted only a right of way and reserved all “mineral lands” it nonetheless endowed the railroad with the untold riches underlying the right of way. Such a construction would run counter to the established rule that land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it. Caldwell v. United States, 250 U. S. 14, 20-21. These are the reasons we construe “mineral lands” as used in § 3 of the Act to include mineral rights in the right of way granted by § 2.
The system which Congress set up to effectuate its policy of reserving mineral resources in the alternate sections of public land granted by § 3 was by way of an administrative determination, prior to issuance of a patent, of the mineral or nonmineral character of the lands. Patents were not issued to land administratively determined to constitute mineral lands. And, the administrative determination was final. Burke v. Southern Pacific R. Co., 234 U. S. 669. Such an administrative system was obviously inappropriate to the right of way granted by § 2. The land needed for the right of way was not acquired through the issuance of a patent, but by the filing of a map showing the definite location of the road, followed by its actual construction. Northern Pacific R. Co. v. Townsend, supra, at 270.
A provision for prior administrative determination of which land in the path of the right of way constituted mineral lands would have been inappropriate for another reason. As already noted, the route of the railroad had to be determined by engineering considerations which could not allow for the extensive detours that the avoidance of land containing minerals would make necessary.
Because the administrative system, by which the exception of “mineral lands” was administered in relation to the lands granted by § 3, is inappropriate to the right of way granted by § 2, we are urged to conclude that the exception of “mineral lands” in § 3 was not intended to apply to § 2. But, construing the grant in § 2 favorably to the Government, as we must, we cannot conclude that Congress meant the policy it expressed, by excepting “mineral lands” in § 3, to be inapplicable to § 2 in the face of its admonition that the exception is applicable to the entire Act. Nor can we conclude that, because the administrative system, by which mineral resources in the grant of land under § 3 were reserved, was inappropriate to § 2, Congress did not intend appropriate measures to reserve minerals under the right of way granted by § 2. We cannot assume that the Thirty-seventh Congress was profligate in the face of its express purpose to reserve mineral lands.
To be sure, Congress later on designed a more precise and articulated system for the separation of subsoil rights from the other rights in the western lands. See, for example, the Act of March 3, 1909, 35 Stat. 844. It would have been better draftsmanship, if, in referring to § 2, Congress had used the words “mineral rights” instead of “mineral lands.” Yet it will not do for us to tell the Congress “We see what you were driving at but you did not use choice words to describe your purpose.”
Some reliance is placed on a line of decisions of the Court which describe the rights of way under early railroad land grants as limited fees. These cases were, for the most part, controversies between the railroad and third persons and involved problems so remote from the present one as to be inapt as citations. For example, the leading case raised the question whether third parties could establish valid homesteads on the railroad right of way after the right of way had been located and the tracks laid. Northern Pacific R. Co. v. Townsend, supra. An answer in favor of the railroad on the ground that it had a limited fee could hardly be an adjudication concerning the ownership of mineral resources underlying the right of way in a contest between the United States and the railroad. In only one of the cases cited was the United States a party; and in that case the question did not involve mineral rights but jurisdiction over a person transporting liquor. If the right of way was Indian Country when it crossed an Indian reservation, then a violation of the liquor laws had occurred. The Court held that the right of way was not Indian Country and said in passing that the right of way constituted the fee in the land. Clairmont v. United States, 225 U. S. 551, 556. We do not stop to examine the other cases using like language to describe the railroad’s right of way, because in none of them was there a contest between the United States and the railroad-grantee over any mineral rights underlying the right of way. The most that the “limited fee” cases decided was that the railroads received all surface rights to the right of way and all rights incident to a use for railroad purposes.
Great reliance is placed on Great Northern R. Co. v. United States, 315 U. S. 262, for the view that the grant of a right of way in the year 1862 was the grant of a fee interest. In that case we noted that a great shift in congressional policy occurred in 1871: that after that period only an easement for railroad purposes was granted, while prior thereto a right of way with alternate sections of public land along the right of way had been granted. In the latter connection we said, “When Congress made outright grants to a railroad of alternate sections of public lands along the right of way, there is little reason to suppose that it intended to give only an easement in the right of way granted in the same act.” Id., at 278. But we had no occasion to consider in the Great Northern case the grant of a right of way with the reservation of “mineral lands.” The suggestion that a right of way may at times be more than an easement was made in an effort to distinguish the earlier “limited fee” cases. To complete the distinction, Mr. Justice Murphy with his usual discernment added, “None of the cases involved the problem of rights to subsurface oil and minerals.” Id., at 278.
The latter statement goes to the heart of the matter. There are no precedents which give the mineral rights to the owner of the right of way as against the United States. We would make a violent break with history if we construed the Act of 1862 to give such a bounty. We would, indeed, violate the language of the Act itself. To repeat, we cannot read “mineral lands” in § 3 as inapplicable to the right of way granted by § 2 and still be faithful to the standard which governs the construction of a statute that grants a part of the public domain to private interests.
Reversed.
Mr. Justice Whittaker took no part in the consideration or decision of this case.
To that effect are administrative decisions, by officers of the Interior Department dealing with comparable statutes, that a congressional grant of land “for railroad purposes” does not carry the right to drill for oil or to remove solid minerals. Missouri, Kansas & Texas R. Co., 33 L. D. 470 (Act of July 26, 1866, 14 Stat. 289); Missouri, Kansas & Texas R. Co., 34 L. D. 504 (Act of February 28, 1902, 32 Stat. 43); Use of Railroad Right of Way for Extracting Oil, 56 I. D. 206 (Act of March 3, 1875, 18 Stat. 482); Northern Pacific R. Co., 58 I. D. 160 (Act of July 2, 1864, 13 Stat. 365).
Railroad Co. v. Baldwin, 103 U. S. 426 (a contest between the owner of the right of way and a settler who took possession before the line was definitely located); Missouri, K. & T. R. Co. v. Roberts, 152 U. S. 114 (a contest between the owner of the right of way and one who claimed the land under a grant from the State); New Mexico v. United States Trust Co., 172 U. S. 171 (an effort by the State to tax the right of way and structures on it in face of an exemption granted by Congress); Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U. S. 190 (whether the grant of the right of way was qualified by a later Act of Congress); Rio Grande W. R. Co. v. Stringham, 239 U. S. 44 (a contest between the owner of the right of way and the owner of a placer patent); Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531 (an effort of the owner of the right of way to get an exemption from local taxation for a street improvement that enhanced the value of the railroad use); Missouri, K. & T. R. Co. v. Oklahoma, 271 U. S. 303 (the right of the owner of the right of way to compensation for damage suffered by the construction of crossings).
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_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
COUTO v. UNITED FRUIT CO.
No. 182, Docket 22566.
United States Court of Appeals Second Circuit.
Argued March 3, 1953.
Decided March 27, 1953.
Burlingham, Hupper & Kennedy, New York City (Eugene Underwood, Ray Rood Allen and Benjamin E. Haller, New York City, of counsel), for appellant.
William A. Blank, Brooklyn, N. Y., for appellee. .
Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.
FRANK, Circuit Judge.
This was a suit by plaintiff, a seaman, under the Jones Act, 46 U.S.C.A. § 688, for injuries sustained while serving on defendant’s ship. At the trial by judge and jury, there was evidence as follows: Plaintiff was directed by the boatswain to “slush” the stays, i. e., to apply a preservative compound to steel cables permanently installed between the ship’s side at deck level and a point on the masts about forty-five feet above the deck. To do this work, plaintiff used a “bosun’s chair,” i. <?., a board used as a seat, with short lengths of rope fastened to each corner. These were joined together, to form a bridle, at the upper end of which there was a loop or “eye.” To suspend the “bosun’s chair,” plaintiff placed over the stay a U-shaped shackle, the open ends of which could be closed by a threaded pin. Plaintiff testified that he inserted this pin through the eye at the upper end of the bridle, and thus attached the bridle and chair to the shackle. The shackle was free to slip up and down from the top of the stay to a point about five feet above the deck, where there was a turnbuckle on the stay which was too large to permit passage of the shackle.
Plaintiff testified that he passed a rope, or gantline, through a block attached to the mast near the top of the stay and secured one end of the gantline to the bridle of the bosun’s chair. By pulling on the loose end of the gantline, as he stood on the deck, plaintiff raised the bosun’s chair to the upper end of the stay. He then ascended the mast by a ladder, carrying a bucket of “slush,” and seated himself in the bosun’s chair, holding it in position by securing the pay-away end of the line to the bridle. The bucket of “slush” was suspended from the bosun’s chair by a short line. After slush-ing each section of the stay within reach, plaintiff would lower himself a short distance by loosening and paying out part of the pay-away end of the line. When plaintiff had thus lowered himself to a point a few feet above the deck, he fell to the deck.
Plaintiff testified that the only cause of his fall was that the rope which had supported the chair broke, allowing the chair and shackle to slide down to the point where it caught on the turnbuckle. He also testified that the rope was old and unsuitable. This defendant’s witnesses denied. Defendant produced and offered in.evidence what it claimed was the rope actually used; it was unbroken.
In the charge to the jury, the judge included the statement that “if the rope furnished Mr. Couto was unsafe for the purpose of its intended use in the rigging employed in slushing down the stays, or if there was insufficient assistance for and improper supervision of that operation, then you will find that the defendant did not provide a seaworthy skip, regardless of whether or not you find the defendant to have been negligent.”
The words we have italicized state a wholly incorrect rule. We think defendant’s attorney sufficiently called this error to the judge’s attention when the attorney, after the charge, said, “Also, may I ask your Honor to charge one thing, that in spite of the fact that an old rope might have been issued, if that rope didn’t break, there is no unseaworthiness.” The judge denied this request on the ground that it had already been covered by his charge. We cannot agree. As the verdict was tainted by this error, there must be a new trial.
Defendant contends that there was error in that the amount of the verdict exceeded the ad damnum. We think not. See Rule 54(c); Fanchon & Marco v. Paramount Pictures, 2 Cir., 202 F.2d 731; Clark, Code Pleading (2d ed. 1947) 265-273. Defendant also argues that the trial judge erred in receiving evidence, offered by plaintiff, outside the scope of the pre-trial order. Since there must be a new trial, we have not considered this alleged error; and we assume that, to avoid any question, plaintiff will now take steps to procure a modification of the pre-trial order.
Reversed and remanded.
. Emphasis added.
. See Rule 51, F.R.C.P. 28 U.S.C.A.
. After the jury had deliberated for several hours, they returned to the courtroom and asked a repetition of the charge. The judge complied. Defendant’s counsel then excepted to certain parts of the charge but did not, by exception or request, again object to the portion of the charge we have quoted in such a way as to call the judge’s attention to the error. We think that this did not cure that error. Cf. Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, 519.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellant, v. DON B. HART EQUITY PURE TRUST, Don B. Hart and Mary Louise Hart, Defendants-Appellees.
No. 86-1614.
United States Court of Appeals, Fifth Circuit.
June 16, 1987.
Nancy M. Koenig, Myrna B. Silen, Attys., Lubbock, Tex., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellant.
Martha A. Miller, Atlanta, Ga., for defendants-appellees.
Before WISDOM, WILLIAMS, and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
In this appeal the Small Business Administration (SBA) contends that the district court erred in granting summary judgment in favor of Don Hart Equity Pure Trust (Hart Trust) on a claim by the SBA for the payment of a deficiency judgment rendered against Hart Trust. We agree with the SBA and therefore reverse the court’s granting of summary judgment in favor of Hart Trust.
I.
The facts in this case were stipulated to by both parties. Don B. Hart and Mary Louise Hart are farmers in Hansford County, Texas. Because of financial difficulties, on August 28, 1978, the Harts, through Hart Trust, sought and obtained a loan from the SBA. Hart Trust executed a promissory note in the amount of $157,400, payable to the SBA. That same day the Harts personally guaranteed the note, with the SBA obtaining a lien and an undivided interest in two properties owned by the Harts.
The loan called for repayment in annual installments of $18,452, due each January 15 from 1979 through 1988. Hart Trust made its first installment payment on January 15, 1979. It could not make the second payment on January 15, 1980, but the SBA agreed to defer the payment until July 15, 1980. When Hart Trust could not make that payment, the 1980 installment was deferred a second and final time until November 15,1980. Hart Trust never paid this or any of the subsequent installments.
After Hart Trust failed to make the second installment payment, the SBA declared the note in default and accelerated the note so that the entire principal became due and payable. On September 7, 1982, the properties securing the note were sold at a foreclosure sale, and the proceeds were applied to Hart Trust’s debt under the note. After the sale, Hart Trust owed an unpaid principal balance of $55,261.64. The SBA sought payment of this amount from the Harts and then instituted this action against them when the Harts refused to pay. During the service of the loan, the SBA did not at any time provide Hart Trust or the Harts with a written notice of the provisions for deferral and loan payment moratoriums found in 13 C.F.R. § 131.
After consideration of these facts, the district court concluded that SBA borrowers have a legal entitlement to loan deferral consideration, and that Hart Trust was denied that consideration without procedural due process. In reaching this conclusion, the court relied on cases interpreting deferral procedures used by the Farmers Home Administration (FmHA). The court noted that the FmHA cases were not binding authority, but because of the parallels between the language and purposes of the FmHA and SBA loan program statutes, the court felt justified in relying upon the FmHA cases when considering due process requirements in the SBA loan deferral program. The court concluded that the SBA should be held to the same due process standards that have been applied to the FmHA.
In examining FmHA cases, the court adopted the rule expressed in Allison v. Black, 723 F.2d 631, 634 (8th Cir.1983):
The requirement of a request by the borrower prior to consideration for section 1981a relief presupposes that the borrower has knowledge of the availability of such relief. Notice to the borrower is therefore indispensable. In like manner, the requirement of a showing of prima facie eligibility is necessarily premised upon the expectation that some procedure will be provided under which the borrower may make the requisite showing. Thus, the rudimentary elements of adequate notice and an opportunity to be heard are embodied in the language of section 1981a.
Based on this language, the court held that Hart Trust should have received written notice of the deferral provisions, and that any constructive notice received by reason of obtaining deferrals was not sufficient. The court also concluded that even if sufficient notice was given, Hart Trust did not have an adequate opportunity to be heard, and thus the procedure used was still infirm.
The district court also was concerned with the lack of substantive standards by which a borrower’s entitlement to deferral relief could be measured. The court criticized the program because the decision to extend deferral relief to a borrower was left to the discretion of the individual SBA loan officer. Thus, the court concluded that there was no safeguard to insure consistent administration of the loan deferral program.
Based on these factors, the district court concluded that Hart Trust
failed to receive due process under the provisions of the Small Business Act because [it was] not afforded a reasonable opportunity for meaningful administrative review of the decisions made by the local loan servicing officer. Meaningful review requires as a minimum the promulgation of standards to be used in measuring deferral rights under the statute, personal notice to borrowers of the availability of and the standards governing deferral, and finally, personal notice of the proper procedure for appealing the loan servicing officer’s decision.
For these reasons, the court granted summary judgment in favor of Hart Trust.
The SBA now appeals, arguing that (1) this circuit’s unpublished opinion, United States v. Parr, 793 F.2d 1288 (5th Cir.), cert. denied, — U.S.-, 107 S.Ct. 320, 93 L.Ed.2d 293 (1986), controls and requires reversal; (2) that due process in the SBA loan program context does not require personal notice of the availability of deferral relief and a meaningful opportunity to be heard; (3) that the FmHA line of cases, and the standards developed in those cases, are not applicable to the SBA; (4) that the SBA does not administer its deferral program in an ad hoc, discretionary, or inconsistent manner; (5) that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone; and (6) that the court erred in holding that the SBA was not entitled to a deficiency judgment. We address these contentions below.
II.
First, we find that Parr controls the first three issues. Under Parr, Hart Trust does not have the right to receive actual written notice of the deferral program and an opportunity to be heard in order for the SBA to have complied with procedural due process standards. Parr also prevents Hart Trust from relying upon FmHA cases as support for that position.
In Parr the borrowers were farmers in Frio County, Texas, and were unable to maintain their obligations under the SBA Disaster Loan Program (the same program involved in the instant case). The Parrs took out two loans with the SBA. The payments on the first loan were deferred three times for a total of 15 months, and the payments on the second loan were deferred twice for a total of 18 months. Eventually the SBA decided to accelerate the loans and place the Parrs in default. The Parrs never tendered a single payment on either of the two loans.
The Parrs argued that (1) the United States had an obligation to continue to extend credit to them because the SBA assured them that their loan obligations would be deferred if they could not make their payments; and (2) that the United States could not accelerate their loans without giving them notice and an opportunity to be heard.
This court found neither argument to be persuasive. As to the Parr’s claim for procedural due process, the court held that
people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration.
As for the Parrs’ claim that they did not receive notice, the court found that
even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second.
Finally, the court dismissed the Parrs’ claim that the government had any duty to continue to make loans to the Parrs, noting that no such obligation was contained in the written promissory notes signed by the Parrs.
The facts of Parr correspond almost exactly with the facts of the instant appeal. In both cases, after having received deferrals, the borrowers were still unable to pay back the loans. The SBA eventually declared the loans to be in default and foreclosed upon the property. In both cases the borrowers argued that due process required that they receive actual notice of the deferral program and an opportunity to be heard on the issue of deferrals. In Parr we rejected that claim, and, therefore, we must follow that precedent and also reject such a contention in the present case.
Hart Trust attempts to minimize Parr’s impact through three arguments. First, it contends that Parr has no precedential value. However, there is no merit to this assertion. Although Parr is unpublished, it is binding precedent. 5th Cir.R. 47.5.3. Moreover, even if we were to disagree with the conclusion reached in Parr, we cannot overrule another Fifth Circuit panel absent an overriding Supreme Court decision or a change in statutory law. Girard v. Drexel Burnham Lambert, Inc., 805 F.2d 607, 610 (5th Cir.1986). Thus, we are bound by Parr. Because Parr is binding precedent, we are not at liberty to consider the potential applicability of the FmHA line of authority.
The second argument made by Hart Trust, which is related to the first, is that this court erred in the holding in Parr that the “SBA has no affirmative obligation to permit its borrowers to exhaust loan options as condition precedent to bringing collection actions against them.” As we stated above, this panel is bound by the Parr holding that the SBA has no such obligation.
Finally, Hart Trust attempts to distinguish Parr factually by asserting that, unlike the Parrs, Hart Trust did not receive actual deferrals. Instead, appellee argues that it received “informal extensions which provided them no loan servicing assistance.” We do not find any support that the alleged “informal extensions” were not deferrals. The relevant deferral provisions are contained in 13 C.F.R. §§ 131.2 and 131.3. Section 131.2 provides: “ ‘Deferment’ means the procedure whereby a lender (participant or SBA) suspends a borrower’s obligation to make payments on a loan for a stated period.” Section 131.3(b) provides: “When SBA has decided to suspend payment on a direct ... loan, a deferment will be approved under administrative procedures, and payment by borrower will not be required for a stated time period.” In the present case, we believe the “informal extensions” were deferrals. Hart Trust had its payment obligations suspended for a stated period of time. We find no merit to Hart Trust’s attempted distinction.
In sum, we hold that we are bound by Parr to conclude that due process does not require personal written notice of the availability of deferral relief and an opportunity to be heard on that issue. Also, our reliance on Parr precludes the ability of this court to find such obligations based upon FmHA loan deferral cases.
III.
The next issue we must consider is whether the SBA administers its deferral program in a discretionary, inconsistent, and ad hoc manner. Regarding this issue the district court held:
In addition to the lack of procedural safeguards, this Court is concerned with the apparent lack of substantive standards whereby a borrower’s entitlement to deferral relief can be measured. While the statute itself provides some general guidance for applying the suspension provisions of the statute, the Administrator has failed to generate uniform criteria to aid the various SBA offices in the exercise of the discretion granted by the statute. In essence, the decision to extend deferral relief to a given borrower is left to the unguided inclinations of the individual SBA loan servicing officer. Thus, the SBA provides no safeguards to insure the consistent administration of the loan deferral relief provisions, [footnotes omitted].
In Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055 [39 L.Ed.2d 270] (1974), the Supreme Court stated that
The power of an administrative agency to administer a Congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress____ No matter how rational or consistent with Congressional intent a particular decision might be, the determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds.
415 U.S. at 231 [94 S.Ct. at 1072]. The present record reflects exactly that. After several informal extensions were granted pro forma at the request of the borrower, the SBA reversed its course, declined to grant any further extension, and proceeded to accelerate defendants’ note without any apparent evaluation of defendants’ situation in light of the deferral provisions of the statute. Such a course is unacceptable given the expressed intention of Congress to make deferral relief available to SBA borrowers when confronted with the circumstances described in the statute.
First, we note that the SBA deferral program is designed to be discretionary. The statutory framework for deferral provides:
(2) The Administration may undertake or suspend for a period of not to exceed 5 years any small business concern’s obligation under this subsection only if—
(A) without such undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become insolvent or remain insolvent;
(B) with the undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become or remain a viable small business entity; and
(C) the small business concern executes an agreement in writing satisfactory to the Administration as provided by paragraph (4).
15 U.S.C. § 634(e)(2) (emphasis added). The legislative history of this statute confirms this view:
The Senate bill basically gives SBA the same authority [as that of the House bill] except that it would be discretionary rather than mandatory to grant the moratorium. The Senate bill also limits eligibility to borrowers who are still viable prior to the granting of the suspension and authorizes the SBA to require the borrower to take such action as is appropriate to assure that the rights and interests of the lender will be safeguarded.
The conference substitute adopts the Senate provision but extends eligibility to small businesses which have already become insolvent providing that with the moratorium the small business could again become a viable entity.
(emphasis added). H.R.Conf.Rep. No. 95-535, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Ad.News 821, 843, 848.
The district court, however, was concerned that while the decision to extend a deferral may be discretionary, there are not any uniform criteria to aid the various SBA offices in the exercise of its discretion. Thus, the decision of whether to extend deferral relief to a borrower is left to the unguided inclinations of the individual SBA officer, giving rise to potential inconsistent results. We disagree. While there is a certain degree of unguided discretion, that discretion was purposefully added to the deferral program. Moreover, the SBA is not completely unguided in its administration of the program. The statute does provide the parameters of when the SBA may defer repayment of a loan. It may do so only if (1) without such suspension of the obligation the business would become insolvent or remain insolvent, (2) with such suspension the business would become or remain a viable business, and (3) the business executes a repayment agreement. 15 U.S.C. § 634(e)(2). Only when these three criteria are met is the business entitled to deferment, and even then at the discretion of the SBA. Thus, we do not believe that the SBA is left to its unguided inclinations in deciding when deferral is proper.
Finally, the district court was concerned that the deferral program in the instant case was implemented in an ad hoc manner, without any evaluation of Hart Trust’s situation. The facts of this case belie such a contention. In January 1979 Hart Trust requested a 90-day extension for making the January 1979 payment. This request was granted, and even then payment was not made until November. In April 1980 Hart Trust requested a deferral for the second payment that was due in January 1980. This payment was deferred until July 1980. Hart Trust then requested a deferral until November 1980, which was also granted. This payment, however, was never made.
In May 1981 the SBA sent Hart Trust a collection letter requesting that the loan be brought up to date or that other arrangements be made. In June 1981 the SBA demanded payment of the loan. Hart Trust responded in July 1981, requesting that the SBA delay taking any action pending its obtaining another loan that would be used to pay the SBA. Still, no payment was made. In December 1981 the SBA made another demand for payment; payment was not made. In April 1982 the SBA contacted a representative of Hart Trust regarding the loan and agreed to delay taking any liquidation action after being assured that payment would soon be made. It was not.
Finally, after being in default over two years, on May 10, 1982, the SBA accelerated the loan. The Hart’s property securing the loan was sold on September 7,1982. Then, in November 1982 the SBA wrote the Hart’s demanding payment of the balance of the loan that was not satisfied by the sale of the property. In this letter, the SBA still offered to accommodate the Hart’s if they were still having financial difficulties.
These facts illustrate that the SBA did not administer Hart Trust’s loan in an ad hoc manner without any evaluation of its financial situation. On the contrary, the SBA was patient and accommodating, and it complied with its rules and regulations. The SBA gave Hart Trust more than an adequate opportunity to try to work out a repayment plan. We find no merit to this claim.
IV.
The SBA next contends that the district court erred in giving probative value to the terms of the settlement agreement adopted in Stone. We believe that the SBA has incorrectly interpreted the court’s discussion of Stone. We do not think that the court relied on Stone for its holding; rather, the court merely noted that the “SBA has already implemented a program in Georgia pursuant to a settlement entered in the case of Stone v. Cardenas ... which would go a long way towards satisfying the procedural defects noted by the Court in this opinion.” (footnote omitted). We do not read this statement as one indicating a reliance by the court on Stone for its holding. Instead, the court is merely suggesting a solution to the problems it identified. Therefore, we do not address the SBA’s argument of whether the district court erred in giving probative value to Stone. Instead, we dismiss the discussion relating to Stone as dicta.
V.
The SBA’s final argument is that the district court erred in not granting summary judgment in its favor, holding that it was entitled to a deficiency judgment. We agree. In this case, both parties agreed to submit the case for summary resolution based on the stipulated facts and trial briefs. Since we hold that the district court erred in granting summary judgment in favor of Hart Trust, judgment must now be entered in favor of the SBA.
VI.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case to the court to enter judgment in favor of the SBA.
APPENDIX
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
BRUCE EDWARD PARR and GRACE M. PARR, Defendants-Appellants.
No. 85-1424
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.
June 24, 1986
Appeal from the United States District Court for the Northern District of Texas
Before CLARK, Chief Judge, JOLLY and HILL, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In 1978 and 1979, Bruce and Grace Parr (the Parrs) borrowed money from the United States through the Small Business Association (SBA) Disaster Loan Program. Although the SBA deferred repayment of these loans several times, the Parrs were unable to tender their required payments. In April 1982, the SBA accelerated the notes and in March 1983 brought this action against the Parrs to recover the amounts due. The Parrs, acknowledging their indebtedness, asserted three affirmative defenses. Prior to trial, the district court struck two of these defenses and allowed the case to proceed to trial before a jury on the remaining defense. At the close of all evidence, the district court granted the United States’ motion for directed verdict and entered judgment for the United States.
On appeal, we are asked to determine whether the district court erred either by striking the two affirmative defenses or by granting the directed verdict for the United States. As we find no error, we affirm.
I.
A.
The Parrs have been farmers in Frio County, Texas for over forty-four years. After suffering substantial financial losses, the Parrs, upon the recommendation of a local banker, investigated the possibility of obtaining loans from the SBA Disaster Loan Program. According to the Parrs, SBA officials advised them that the Disaster Loan Program was not a “one shot” situation, but rather that the SBA would continue to lend operating funds in the future. The Parrs also contend that the SBA officials represented that payments due during disaster years would be deferred or restructured and that repayment of the loan would be conditioned upon normal production.
Based on these representations, on December 15, 1978, the Parrs borrowed $189,-000 at three percent interest from the SBA. The loan was evidenced by a promissory note which stated that the first payment was due on April 1, 1980. The Parrs continued to suffer financial stress and thus on May 17, 1979, borrowed an additional $195,000 at three percent interest from the SBA. This debt, also evidenced by a promissory note, required the first payment to be tendered on February 1,1980. On January 24, 1980, the SBA deferred payment on the loan until August 1, 1980.
Meanwhile, the April 1 repayment date on the first loan was quickly approaching and the Parrs were still in financial straits. Unable to make the loan payments from the proceeds of their farm production, the Parrs applied for yet another loan and the SBA agreed to defer payment until October 1, 1980. Both the August 1, 1980 repayment date for the second loan and the October 1, 1980 repayment date for the first loan passed without payments by the Parrs. On October 21, 1980, the SBA notified the Parrs that they had been allowed duplicated benefits and demanded repayment of $13,809; the SBA also reminded the Parrs that payments on both loans were past due. On November 6, 1980, the Parrs repaid the $13,809, but did not tender any payments due on either loan.
On November 25 and December 5, the SBA wrote the Parrs that repayment on the first loan was again being deferred, this time to April 1, 1981. The SBA notified the Parrs, however, that both loans were seriously delinquent. The Parrs still did not tender payment on the second loan, even though the date for the second payment on this loan, February 1, 1981, was approaching. Without ever having received the first payment which was due on August 1, 1980, the SBA deferred the second payment from February to August 1981.
The April 1, 1981 repayment date for the first loan passed without any repayment. On May 13, the SBA deferred for the third time the first payment on the first loan to July 1, 1981. When this date passed without payment, the SBA wrote to the Parrs, requesting payments on August 12, August 25, September 4, and October 1, 1981. In addition, the August 1, 1981 repayment date for the second note also passed without payment. On October 21, the SBA wrote the Parrs about these overdue payments, and on November 19, notified the Parrs that both debts were being accelerated. Acceleration letters were sent again on April 1, 1982. Except for the repayment of $13,809 to return duplicate benefits, the Parrs failed to tender a single repayment under either loan.
B.
On March 7, 1983, the United States, on behalf of the SBA, brought suit against the Parrs, seeking to recover the amounts due on both loans. The procedural aspects of this action, extending over more than two years, are complex and not relevant to the outcome of this appeal. From the important thrusts and parries, we note that the Parrs admitted executing both promissory notes and receiving demands for payment, but contended that the terms of the contract included representations made to them by SBA officials at the time these loans were negotiated, and that the United States was in default on these additional contract terms which caused the Parrs to sustain monetary damages that more than offset the amount owing to the SBA. Thus, to offset the United States’ prima facie case, and as recoupment for the Parrs’ loss, the Parrs, in the second amended pretrial order, asserted the following three affirmative defenses:
1. Defendant asserts that he suffered crop disasters in 1977, 1978, 1979 and 1980. He obtained loans for the first two disasters and processed application for the third and fourth. The third application was granted and funding was refused by local SBA officials. Defendant contends that this action caused his default and is an offset in law and equity.
2. Defendants assert that the Plaintiff is estopped from liquidating, accelerating or otherwise attempting to foreclose without first giving defendants notice and opportunity to request deferral in accord with Title 13 C.F.R. and that such action by plaintiff would violate defendants’ constitutional right to due process under the Fifth Amendment.
3. Defendants assert that Plaintiff is in material breach of the contract between the parties and that the defendants are not obligated to further performances under the contract.
On April 19, 1985, the United States moved to strike these defenses under Federal Rule of Civil Procedure 12(f). On May 7, 1985, the district court partially granted the United States’ motion to strike, leaving the Parrs with only their third affirmative defense. The court also granted the United States’ motion in limine, preventing the Parrs from introducing evidence or testimony regarding rejected loan applications filed by the Parrs with the SBA after the first and second loans were executed.
A jury trial began on May 7, focusing primarily on the Parrs’ assertion that the United States was in material breach on the contract between the parties. The United States established its prima facie case of the Parrs’ indebtedness on the 1978 and 1979 loans and rested its case. The Parrs then offered testimony by seven witnesses to show that additional representations, not apparent on the face of the written agreement, were made to the Parrs and that these representations were material terms of the loan agreement. After the Parrs rested their case, the United States offered no rebuttal evidence. After arguments by the parties, the district court granted the United States’ motion for a directed verdict, and ordered that the United States recover from the Parrs $437,-478.14, plus interest. The Parrs filed a timely notice of appeal.
II.
A.
The Parrs raise two issues on appeal. First, the Parrs contend that the district court erred as a matter of law in striking their first two affirmative defenses. Second, the Parrs argue that the district court erred in granting the United States’ motion for a directed verdict.
B.
The Parrs assert two reasons why it was error for the district court to strike two of their affirmative defenses before trial. First, the Parrs contend that the United States’ motion to strike was untimely as it was filed more than twenty days after the Parrs’ pleading was served on the government. See Fed.Rule of Civ.Pro. 12(f). While the Parrs accurately assess the time periods involved, we note that they did not raise this issue to the district court when responding to the United States’ motion to strike. Since issues not raised below will generally not be considered on appeal, we decline to reverse the motion to strike on this ground.
The Parrs’ second contention is that the district court erred in finding the affirmative defenses insufficient as a matter of law. The first defense asserts that the Parrs defaulted on their loans because applications for a third and fourth loan were denied. Clearly, this defense is legally insufficient because a decision not to extend further credit does not offset an already existing obligation, unless the creditor has an obligation to lend additional funds. The Parrs’ contention that the United States did have such an obligation is the sole basis of the third affirmative defense. See infra p. 1250. Since the first and third defenses, when examined, are overlapping, the district court’s decision to strike the first defense was not an abuse of discretion.
The second affirmative defense contends that the United States is estopped from accelerating debts on the loans without first giving the Parrs notice and an opportunity to request deferrals. We find this defense difficult to understand. First, the Supreme Court has held that people are charged with knowledge of the contents of federal regulations, just as they are charged with knowledge of statutory law. See Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Thus, officers of the United States were not responsible for informing the Parrs of any right to loan deferrals before acceleration. Second, even if the United States did have an obligation to inform the Parrs of the availability of deferrals, the Parrs were so informed. In fact, the Parrs received three deferrals on the first loan and two deferrals on the second. Since the Parrs had actual notice of their right to receive deferrals, any claim for not being informed of this right is moot. Thus, the district court properly granted the motion to strike the Parrs’ second affirmative defense.
C.
The Parrs’ second contention on appeal is that the district court erred as a matter of law when it granted the United States’ motion for a directed verdict. The Parrs’ claim seems to be that the contract between the Parrs and the SBA included assurances that the SBA would not require any payments on the loans during disaster years and that the SBA breached this agreement. As a result of this alleged breach, the Parrs assert, they have a valid set-off against the SBA’s prima facie case. We disagree.
We do not decide what representations, if any, were made to the Parrs because, even if the asserted representations were made, they do not become terms of the loan agreement between the SBA and the Parrs. “Regardless of the strong moral implications, it is well established that the Government is not bound by the unauthorized or incorrect statements of its agents.” Posey v. United States, 449 F.2d 228, 234 (5th Cir.1971). Accord United States v. R & D One Stop Records, Inc., 661 F.2d 433, 434-35 (5th Cir.1981). Since no terms could have been added to the written promissory notes beyond those authorized by federal regulation, and since the SBA complied with its own regulations, any unauthorized or incorrect representation made to the Parrs did not become terms of the loan agreement. Thus, the district court properly granted the United States’ motion for directed verdict because, as a matter of law, the Parrs had no defense to the government’s complaint.
III.
We find that the district court did not err in striking two of the Parrs’ affirmative defenses to the United States’ prima facie case. Since there was no error in granting the directed verdict in favor of the United States, the judgment of the district court is AFFIRMED.
. The court noted in conclusion that the SBA had already implemented a program in Georgia pursuant to a settlement entered in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D.Ga. 1982), that would go a long way towards satisfying the procedural defects it had found.
The Parr opinion is reprinted in full in the appendix to this opinion.
. Hart Trust also seems to contend that a true deferral entails a period when interest does not accrue on the amount due and payable. Since it only received postponement periods during which interest continued to accrue, it did not receive a true deferral. We also find no statutory or regulatory basis for this distinction and decline to adopt it.
. We do recommend, as the district court also does, that the SBA implement procedures similar to those established in Stone v. Cardenas, Civil Action No. CV 281-122 (S.D. Georgia 1982). First, such procedures will benefit both the SBA and the borrower. The SBA would then have a guide for determining exactly how much service to provide a borrower in its loan deferral program. Finally, such an addition would merely be implementing an existing practice. Also, such a procedure will, without doubt, notify the borrower of the deferral program and of the limits of the SBA’s service.
Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the court has determined that this opinion should not be published.
. The district court did not state any reasons when granting the directed verdict. Thus, on appeal we review all the evidence in the "light and with all reasonable inferences most favorable to the” Parrs. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).
. This loan application was subsequently denied.
. In their brief, the Parrs list the affirmative defenses included in the original pretrial order entered into on March 15, 1985. These defenses were modified in a second pretrial order entered into on May 6, 1985. The order to strike and the trial properly relied on only the defenses contained in the May 6 order. On appeal, we consider only these defenses.
. The Parrs vigorously assert that since the United States did not specifically advance this argument when moving for a directed verdict, this court cannot affirm on this ground. We disagree. “The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court." Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156 n. 6, 25 L.Ed.2d 491 (1970).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_counsel2
|
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, Plaintiff-Appellee, v. Hollis GRISSOM, Defendant-Appellant.
No. 85-1236.
United States Court of Appeals, Tenth Circuit.
March 24, 1987.
R. Raymond Twohig, Jr., of Deaton & Twohig, Albuquerque, N.M., for defendant-appellant.
William L. Lutz, U.S. Atty., and Mark D. Jarmie, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.
Before LOGAN, SEYMOUR and MOORE, Circuit Judges.
LOGAN, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir. R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument.
Defendant, Hollis Grissom, was convicted by a jury of embezzlement under 18 U.S.C. § 657. On appeal, he alleges that (1) applicable federal law, 12 C.F.R. § 563.-40, does not prohibit his conduct; (2) an instruction given by the district court negated his mistake of law defense; and (3) the court’s refusal to include subsection (b) of 12 C.F.R. § 563.40 in its instructions both deprived the jury of controlling federal law under which his conduct was lawful, and impaired his mistake of law defense.
In June 1983 Thomas Hartley, a principal of Eaton Investors, asked defendant if State Savings and Loan of Clovis, New Mexico (State Savings) would finance construction of a medical building in Denver, Colorado. At the time defendant was the president of State Savings and owned 72% of its stock. On July 5, 1983, defendant wrote that State Savings granted Hartley a six-month financing commitment for $450,-000. The loan commitment provided for a two percent origination fee, half of which was payable upon Hartley’s acceptance of State Savings’ commitment. Shortly thereafter Hartley sent an acceptance letter and check for $4500, representing the one percent fee due upon acceptance. This check was made out to defendant personally rather than to State Savings, apparently as a result of a secretarial error. Defendant applied the check to his personal use, endorsing the check at a local bank and applying a part of the proceeds to a personal loan with that bank and taking the rest in cash.
In November 1983, the Federal Savings and Loan Insurance Corporation (FSLIC) placed State Savings in receivership. Hartley, upon learning that the FSLIC would not honor the loan commitment because it had no record that State Savings had received the one percent origination fee, asked defendant what he had done with the money. Defendant refused to discuss the matter. Defendant was thereafter indicted for embezzlement.
At trial defendant pressed two related defenses. Asserting that he had taken the $4500 as compensation for services and expenses he incurred in arranging the loan, he first contended that State Savings’ board of directors had granted him authority to set the compensation of all bank employees, including himself. Defendant also contended that he reasonably believed his conduct was legal based on N.M.Stat. Ann. § 58-10-41, which provides in part: “No director, officer or employee of an association shall receive any fee or other compensation of any kind in connection with procuring any loan for an association except for services actually rendered as provided in this section.” (emphasis added.) Defendant asserted that this statute authorized him to receive compensation for the time spent and costs incurred in negotiating the loan with Hartley.
State Savings, however, as a federally insured institution, is also subject to federal regulation, including the following prohibition of loan procurement fees:
“Restrictions on loan procurement fees, kickbacks and unearned fees.
(a) Loan procurement fees. No affiliated person of an insured institution may receive, either directly or indirectly, from such institution, any subsidiary thereof, or any other source any fee or other compensation of any kind in connection with the procurement of any loan from such institution or subsidiary thereof.”
12 C.F.R. § 563.40(a) (emphasis added).
The district court instructed the jury with respect to both the New Mexico statute and the federal regulation quoted above, and further instructed the jury that the “United States' Constitution provides that state laws are void to the extent they conflict with Federal laws.” R. Ill, 315. The court did not state whether the federal and state provisions did conflict; and it refused to include subsection (b) of 12 C.F.R. § 563.40 in the instructions. Subsection (b) provides:
“(b) Kickbacks and unearned fees. The prohibitions contained in sections 8(a) and 8(b) of the Real Estate Settlement Procedures Act of 1974 (Pub.L. 93-533) [RESPA] shall apply to any fee, kickback, thing of value, and any portion, split or percentage of any charge, either directly or indirectly, given to or accepted by an insured institution or subsidiary or affiliated person thereof, in connection with any loan on real property made by an insured institution or subsidiary thereof, without regard to whether the loan is within the term ‘federally related mortgage loan’, as defined in section 3(1) of the Act.”
Sections 8(a) and 8(b) of RESPA, 12 U.S.C. § 2607(a) and (b), provide as follows:
“(a) No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.
(b) No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.”
The court refused Grissom’s request to include section 8(b) of the RESPA statute in the instructions.
I
Defendant’s first argument on appeal is that his conduct did not violate federal law. He contends that subsection (b) of 12 C.F.R. § 563.40 “expressly limits its own provisions and those of [subsection (a) ] to enumerated provisions of the RESPA statute which expressly allows fees such as Mr. Grissom’s for services actually rendered.” Appellant’s brief at 10.
We disagree with this interpretation of the federal regulation at issue. Subsection (a) of § 563.40 clearly bars persons affiliated with federally insured institutions from receiving any fee — earned or unearned — in connection with the procurement of a loan. Defendant contends that he considers the money he took to have been compensation for procuring the loan. Subsection (b) of Section 563.40, on the other hand, extends additional prohibitions contained in RESPA to insured institutions and affiliated persons with respect to loans on real property. Subsections 8(a) and 8(b) of RESPA prohibit certain kickbacks, referral fees, and unearned commissions connected to charges for settlement services. See 12 U.S.C. § 2607(a) & (b); see also 12 U.S.C. § 2602(3) (defining “settlement services”). Subsection (b) of § 563.40 by its express terms incorporates only the prohibitions contained in RESPA, and provides no basis for defendant’s argument that subsection (b) was intended to limit the unqualified language of subsection (a). Subsection (a) squarely applies to defendant’s situation, and thus we reject his contention that his conduct did not violate 12 C.F.R. § 563.40.
II
Defendant next challenges the court’s instruction that state law is void to the extent it conflicts with the federal regulation. He contends that this amounted to a directed verdict of guilty, negating his mistake of law defense. We disagree. Jury instructions must be read as a whole. United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). The court also instructed the jury that “evidence that the accused acted or failed to act because of ignorance of the law is to be considered by the jury in determining whether or not the accused acted or failed to act with specific intent,” R. Ill, 313, a necessary element of the offense. Informing the jury that conflicts must be resolved in favor of federal law did not vitiate the court’s instruction that defendant’s ignorance of the law could negate the intent necessary for the offense. The jury was still free to conclude that, even though federal regulations proscribed Grissom’s conduct, his ignorance of those regulations prevented him from acting willfully. The challenged instruction did not require a verdict of guilty.
Ill
Defendant finally contends that the court erred in refusing to include 12 C.F.R. § 563.40(b) in the instructions, because the omission not only deprived the jury of the controlling federal law under which his conduct was not prohibited, but also impaired his mistake of law defense. As discussed above, neither subsection (b) nor the RES-PA provisions it references legalize Grissom’s conduct. The district court therefore correctly refused to include them in the jury instructions as controlling law. The court also refused this instruction because it concluded that defendant had not relied on subsection (b). Defendant’s reliance was a condition of fact upon which the subsection’s relevancy depended. See Fed. R.Evid. 104(b). Absent reliance, the subsection was irrelevant to his mistake of law defense.
Although defendant testified that he had read the regulations, he stated that they had no bearing on his taking the fee. In addition, defendant’s attorney explicitly stated that defendant had not relied on subsection (b). Thus it was within the trial court’s discretion not to include subsection (b) in the instructions. See United States v. Linn, 438 F.2d 456, 460 (10th Cir.1971) (“Instructions should be confined to issues in the case and the facts developed by the evidence ...”).
AFFIRMED.
. An origination fee is a fee paid to lenders to cover the administrative costs of making a loan.
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_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CONSUMERS POWER COMPANY, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. CONSUMERS POWER COMPANY, Plaintiff, Cross-Appellant, v. UNITED STATES of America, Defendant, Cross-Appellee.
Nos. 19916, 19917.
United States Court of Appeals, Sixth Circuit.
June 5, 1970.
Richard W. Perkins, Dept, of Justice, Washington, D. C., for the United States; Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, William A. Friedlander, Attys., Dept, of Justice, Washington, D. C., on the brief.
Clifford H. Domke and William 0. Allen, Jackson, Mich., on the brief for Consumers Power Co.
Before COMBS and BROOKS, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
BROOKS, Circuit Judge.
This appeal involves questions relating to the federal income tax liability of the plaintiff-appellee, Consumers Power Company. Consumers brought suit to recover a portion of the income taxes it paid for the taxable years 1954 through 1957. Two issues are presented on review. First, Consumers argues that it should have been able to deduct from its gross income as ordinary and necessary business expenses payments made to the Electric Companies Advertising Program (ECAP), an organization of privately owned electric power companies, for a national advertising campaign carried on during the four year period in question. Second, Consumers contends that it was correct in deducting the face amount of certain death benefit certificates it issued to retiring employees in the years in which the certificates were issued rather than in the years when the death benefits were actually paid. The District Court disallowed the deductions for the expenses of the advertising program, but permitted Consumers to deduct the face amount of the death certificates in the years in which they were issued. See, 299 F.Supp. 1180 (1969).
The payments Consumers made to the Electric Companies Advertising Program were its pro rata share of the cost of a national advertising campaign. An examination of the materials used show the campaign had a two-fold purpose: 1. explaining how electricity can make for more comfortable living, and 2. pointing out the “bad features” of publicly owned electric power companies as compared to privately owned companies. The advertisements for which the District Court disallowed deductions were the ones which in some way attacked public power. Some of the disallowed advertisements made a hard sell attack on public power calling it “creeping socialism”, while others simply suggested that private power companies can provide faster service because, unlike with publicly owned power companies, there was no waiting to have funds appropriated for the needed electrical facilities. Many of the advertisements were directed toward the Tennessee Valley Authority, and several admonished the public to let their congressmen know how they felt about governmental ownership of electric power companies.
The deductibility of the cost of these advertisements is governed by whether it was an “ordinary and necessary” business expense (Title 26 U.S.C. § 162). The Internal Revenue has promulgated 26 C.F.R. § 1.162.20(b) in * * sK # * conjunction with the “ordinary and necessary” business expense section of the Code. This regulation has been considered by the courts at various times. See, Cammarano v. United States, 358 U.S. 498, 79 S.C. 524, 3 L.Ed.2d 462 (1959); American Hardware & Equipment Company v. Commissioner of Internal Revenue, 202 F.2d 126 (4th Cir. 1953); Roberts Dairy Company v. Commissioner of Internal Revenue, 195 F.2d 948 (8th Cir. 1952); Southwestern Electric Power Company v. United States, 312 F.2d 437, 160 Ct.Cl. 262 (1963). And our review of the disallowed advertisements in light of the interpretation given 26 C.F.R. § 1.162.20 (b) by these cases supports the District Court’s determination of nondeductibility. Several of the advertisements are what might be called border line cases for deductibility, but we defer to the District Court’s judgment in those cases. However, it should be noted that this regulation, 26 C.F.R. § 1.162.20(b), is apparently capable of infinitely encompassing proportions. In a situation similar to the present one, where no legislation is pending, and a company’s chief competitor is governmentally owned, the regulation could possibly be extended to disallow a deduction for the cost of an advertisement which simply conveys a competitive message. It is not inconceivable that the expenditures for this type of advertisement might fall into the disallowed category of expenditures which according to the Internal Revenue “include, but shall not be limited to * * * ” attempts to “influence members of a legislative body * * * indirectly by urging or encouraging the public to contact such members for the purpose of proposing, supporting or opposing legislation.” Such type of coercive use of this regulation to discourage private industry from competing in an ordinary business fashion with a publicly owned business would clearly not be in keeping with the intent of the “ordinary and necessary” business expense provision of the Code.
The other question presented on this appeal is whether Consumers should have been able to deduct the amount of certain death benefit certificates issued to retiring employees in the year the certificates were issued or only in the year the benefits were actually paid. The District Court allowed the deduction in the year in which the certificates were issued. It based its decision in part on the argument that Title 26 U.S.C. § 404 (a) and (a) (5) would not apply under these circumstances because Consumers’ death plan was not a plan for “deferred compensation”. However, 26 C.F.R. § 1.404(a)-l (a) (1) states that “section 404(a) also governs the deductibility of unfunded pensions and death benefits paid directly to former employees or their beneficiaries.” In addition, death benefit plans have in the past been classified as compensations. See, New York Post Corporation v. Commissioner of Internal Revenue, 40 T.C. 882 (1963); Seavey & Flarsheim Brokerage Company v. Commissioner of Internal Revenue, 41 B.T.A. 198 (1940). Our examination of Consumers’ death benefit plan, and the circumstances surrounding its establishment, leads us to the conclusion that it was a program of deferred compensation for services rendered. Thus, Title 26 U.S.C. § 404(a) controls and Consumers can only deduct the amount of death benefits paid under its plan in the years in which the payments are actually made.
Affirmed in part, reversed in part.
. (b) Taxable years beginning before January 1, 1963 — (1) In general, (i) For taxable years beginning before January 1, 1963, expenditures for lobbying purposes, for the promotion or defeat of legislation, for political campaign purposes * * * or for carrying on propaganda (including advertising) related to any of the foregoing purposes are not deductible from gross income. For example, the cost of advertising to promote or defeat legislation or to influence the public with respect to the desirability or undesirability of proposed legislation is not deductible as a business expense, even though the legislation may directly affect the taxpayer’s business.
* # :!: !¡í *
(2) Expenditures for promotion or defeat of legislation. For purposes of this paragraph, expenditures for the promotion or the defeat of legislation include, but shall not be limited to, expenditures for the purpose of attempting to—
(i) Influence members of a legislative body directly, or indirectly by urging or encouraging the public to contact such members for the purpose of proposing, supporting, or opposing legislation, # sj< * *
. * * * if compensation is paid or accrued on account of any employee under a plan deferring the receipt of such compensation, such * * * compensation shall not be deductible under section 162 or section 212; but, if they satisfy the conditions of either of such sections, they shall be deductible under this section, subject, however, to the following limitations as to the amounts deductible in any year.
}Ji S{« $ íj<
(5) In the taxable year when paid, if the plan is not one included in paragraph (1), (2), or (3) (not here involved), if the employee’s rights to or derived from such employer’s contribution or such compensation are nonforfeitable at the time the * * * compensation is paid.
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_genresp2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
ASHER v. RUPPA.
No. 9747.
United States Court of Appeals Seventh Circuit.
Feb. 8, 1949.
Rebearing Denied March 25, 1949.
Meyer Abrams, of Chicago, 111. (Shul-man, Shulman & Abrams, of Chicago, 111., of counsel), for appellant.
William B. Rubin, Myron L. Gordon and Joseph P. Brazy, all of Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.
KERNER, Circuit Judge.
Plaintiffs have appealed from an order dismissing their complaint upon the ground that it did not state a claim upon which relief could be granted.
Before proceeding to discuss the merits of this appeal, we pause to consider the claim of Derzon, that the order dismissing the complaint for failure to state a claim upon which relief could be granted is not a final order; in other words, the jurisdiction of this court is questioned on the ground that the order is not one from which an appeal will lie. With this view we are unable to agree.
A judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Milton v. United States, 5 Cir., 120 F.2d 794, and Karl Kiefer Mach. Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469. True it is, that where a motion to dismiss a complaint is sustained and the complaint is dismissed, and the plaintiff does not desire to amend, he should announce his election to stand on his complaint, let a final judgment be entered dismissing the action, and then appeal from that judgment. But in our case, as in Crutcher v. Joyce, 10 Cir., 134 F.2d 809, it is clear that the court completely determined plaintiffs had no right of action against defendants, and that by the order dismissing the complaint the court intended to and did terminate the litigation, and that plaintiffs, by appealing, elected to stand on their complaint; hence we think the order is appealable. See also Johnson v. Horton, 9 Cir., 63 F.2d 950.
In support of the order defendants contend that (1) there is no consideration to support the agreement; (2) the contract upon which the action is based is indefinite; and (3) the contract is against public policy.
The complaint shows affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It appears that plaintiffs and defendants were stockholders of Bismarck Hotel Company, an Illinois corporation, and that while defendants were engaged in a controversy with the management of the hotel company they solicited plaintiffs for their proxies — to be voted in favor of the person nominated by defendants as a director, and that in consideration for the execution and delivery of plaintiffs’ proxies defendants promised and agreed that plaintiffs would share in all of the benefits which defendants might derive as a result of the election. Pursuant to this agreement, plaintiffs gave their proxies to their 760 shares to defendants, and defendants informed plaintiffs that defendant Der-zon had been elected as a director of the corporation. Thereafter, without the knowledge or consent of plaintiffs, defendants entered into a secret deal with Bismarck and its officers to settle all controversies in consideration of the sale to them by defendants of all the stock defendants had voted at the meeting at which Derzon was elected director, for which defendants received a sum greatly above the market price but which did not include plaintiffs’ 760 shares, and instead of including in the sale the stock of plaintiffs, defendants purchased stock in the market greatly below the amount of the sale price to Bismarck.
Plaintiffs are not required to plead all their evidence, and under the rules of civil procedure there is no pleading requirement of stating facts sufficient to constitute a cause of action; indeed, the only requirement is that there be “a short and plain statement of the claim showing that the pleader is entitled to relief”. Federal Rules of.Civil Procedure, rule 8(a), 28 U.S. C.A. The law is now settled that upon mo-
tions to dismiss a complaint on the ground that it does not state a claim upon which relief can be granted, the complaint should be construed in the light most favorable to the plaintiff, with all doubts resolved in his favor and the allegations accepted as true. Cool v. International Shoe Co., 8 Cir., 142 F.2d 318. And if, in view of what is alleged, it reasonably can be conceived that plaintiff can upon the trial make a case which would entitle him to some relief, the complaint should not be dismissed. Montgomery Ward & Co. v. Langer, 8 Cir., 168 F.2d 182, 185; Cool v. International Shoe Co., supra, 142 F.2d at page 320; and Carroll v. Morrison Hotel Corp., 7 Cir., 149 F. 2d 404.
As to the first contention, there can' be no doubt that the execution and delivery of the proxies was consideration for defendants’ promise that plaintiffs would share in all of the benefits which defendants would derive as a result of the election of Derzon as a director of Bismarck.
As to defendants’ second contention, that the contract is indefinite, it will be enough to say that a contract need not contain the details of every fact to which the parties are agreeing. A contract is not indefinite merely because it may be difficult to construe. If the phrases can be made .certain by proof, that is sufficient. Southwest Pipe Line v. Empire National Gas Co., 8 Cir., 33 F.2d 248, 64 A.L.R. 1229, and British-American Oil Producing Co. v. Buffington, 5 Cir., 116 F.2d 363.
Finally, defendants contend that if the contract be construed as one by which Bismarck was to be forced to purchase all of the shares to be voted by defendants at an over price, the agreement must be deemed illegal and against public policy. A quick answer is that such an agreement is not involved or alleged in this case. In entering into the contract here involved, plaintiffs did nothing unlawful, and the contract did not become illegal by any agreement that defendants might have made thereafter without plaintiffs’ knowledge and consent. 12 Am.Jur. pp. 718, 728. Here, plaintiffs agreed that they would give defendants the proxies in consideration of sharing whatever benefits defendants might receive. Such a contract is not inherently illegal. What might be shown upon the trial of the merits, we have no way of telling.
It is clear that defendants agreed that plaintiffs would share in all of the benefits which might be available as a result of Derzon’s election as a director; that defendants entered into a contract by which Bismarck agreed to purchase all of the shares which had been voted by defendants at the meeting of the Bismarck stockholders, including plaintiffs’ 760 shares; and that defendants, in violation of the purchase agreement, excluded plaintiffs’ shares from the sale. In this situation, keeping in mind the legal principles already mentioned, we think the motion to dismiss should have been overruled.
One other matter requires brief mention. It appears that the court, in view of the order dismissing the complaint, sustained objections to interrogatories propounded to defendants. Plaintiffs on this appeal ask that the defendants be ordered to answer the interrogatories. Since we have concluded that the order of the court dismissing the complaint must be reversed, we think the question whether or not defendants shall be ordered to answer the interrogatories ought to be left to the District Court.
The order of the District Court is reversed, and the case is remanded to proceed in accordance with this opinion.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_respond1_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 respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).
BONHAM, District Director of Immigration and Naturalization, v. CHI YAN CHAM LOUIE.
No. 11551.
Circuit Court of Appeals, Ninth Circuit.
Feb. 11, 1948.
J. Charles Dennis, U. S. Atty., and John E. Belcher, Asst. U. S. Atty., both of Seattle, Wash., for appellant
Fred H. Lysons and John J. Sullivan, both of Seattle, Wash., for appellee.
J. P. Sanderson, of Seattle, Wash., ami-cus curia for appellee.
Before DENMAN, STEPHENS, and ORR, Circuit Judges.
DENMAN, Circuit Judge.
This is an attempted appeal from a judgment admitting appellee to citizenship. In the district court the United States appeared and opposed appellee’s petition. One R. P. Bonham, as District Director of Immigration and Naturalization at Seattle, Washington, in his own name as such officer filed within time a notice of appeal. The question we, sua sponte, are required to determine is whether such a District Director has been empowered by Congress to take such action on behalf of the sovereign in his own name as appellant.
The District Director’s notice of appeal was filed on February 14, 1947. Over ten months later the United States appears here and contends that the District Director has such power and moves that it be substituted for him as appellant. The United States also has filed a stipulation of the appellee that the United States so be substituted as appellant and that the appeal be heard on its merits.
It is obvious that appellee’s stipulation for an attack on the judgment favorable to him will not confer jurisdiction on this court if no appeal has been taken by the United States.
The executive organization placed the administration of the immigration laws in the Attorney General. Reorganization Plan V of June 4, 1940, 54 Stat. 1238, 5 U. S.C. § 133t, 5 U.S.C.A. following section 133t. This included the office of the Commissioner of Immigration. That officer “under the direction of the Attorney General” has “charge of the administration of all laws relating to the immigration of aliens” and of the employees appointed under such laws. 8 U.S.C. § 102, 8 U.S.C. A. § 102. We assume that he has the authority to delegate to a district director such administrative power.
The particular immigration law here so to be administered is Sec. 334(d) of the Nationality Act of 1940, 8 U.S.C. § 734(d), 8 U.S.C.A. § 734(d), which provides,
“(d) The United States shall have the right to appear before any court in any naturalization proceedings for the purpose of cross-examining the petitioner and the witnesses produced in support of the petition concerning any matter touching or in any way affecting the petitioner’s right to admission to citizenship, and shall have the right to call witnesses, produce evidence, and be heard in opposition to the granting of any petition in naturalization proceedings,”
This is preceded by provisions for other administrative functions by an “examiner” to gather information respecting the petitioner’s right to naturalization.
It is clear that in administering the litigating provision 734(d), it is the duty of its administrator to cause the United States “to appear” and become the party litigant. The litigant is not the District Director any more than the Attorney General is the litigant in administering the litigation of tax claims for the United States. The instant notice that the “District Director * * * hereby appeals” no more brings the case before us than would a notice of appeal in such a tax claim case if it merely stated that “the Attorney General appeals” from a judgment adverse to the government.
The substitution of the United States in this court could not create jurisdiction in us by the notice of appeal in the name of the District Director, filed ten months earlier. The case has never been before us. In this it is unlike McDonald v. Nebraska, 8 Cir., 101 F. 171, 173, where the cause of action was held to be always before the district court in which the substitution was made. Nor is it like United States v. Koike, 9 Cir., 164 F.2d 155 and Sumpter Lumber Co. v. Sound Timber Co., 257 F. 408, where we held we had jurisdiction of the appeals before substituting as appellant the real party in interest.
Another panel of this court filed on December 29, 1947, an opinion in the case of Carmichael v. Wong Choon Hoi, 164 F.2d 696, which ordered the dismissal of the appeal, stating “Appellant is not a proper party to bring this appeal.” An examination of the record there shows that, as here, that appeal was from a decision in favor of a Chinese petitioning for naturalization in which the notice of appeal was in the name of a District Director of Immigration.
The motion to substitute the United States of America as appellant is denied and the appeal is ordered dismissed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_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.
UNITED STATES of America, Plaintiff-Appellant, v. Irvin Quinn HINES, Defendant-Appellee.
No. 90-30446.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 7, 1991.
Decided April 29, 1992.
Michael J. Brown, Asst. U.S. Atty., Portland, Or., for plaintiff-appellant.
Paul S. Petterson, Asst. Federal Public Defender, Portland, Or., for defendant-ap-pellee.
Before: TANG, O’SCANNLAIN and RYMER, Circuit Judges.
PER CURIAM:
The United States brings this interlocutory appeal from an order by the district court suppressing statements made by Irvin Hines to a special agent of the Bureau of Alcohol, Tobacco, and Firearms. On April 19, 1989, the agent visited Hines at his house to question him about certain activities in December of 1988 and January of 1989. At the time of the questioning, the December activities were the subject of a state prosecution for which Hines had been provided counsel. In response to the agent’s questions, Hines indicated that the agent should speak to his court-appointed attorney.
After speaking to his attorney, the agent returned to Hines’s house on April 21 to question him about the January activities, which were unrelated to the activities for which Hines was then being prosecuted. Hines signed a statement waiving his Miranda rights and answered the agent’s questions, which pertained only to the January activities.
Some time thereafter, the state, pursuant to a plea agreement with Hines, dismissed its charges pertaining to the December activities. On June 12, 1990, the federal grand jury returned its indictment against Hines, which charged him with separate counts of possession of an unregistered firearm as a result of the December and January activities. The district court suppressed Hines’s April 21 statements regarding his actions in January. We reverse and remand for further proceedings.
I
Although the district court did not enter written findings of fact or conclusions of law, it appears that the court treated Hines’s April 19 reference to his lawyer as an invocation of Miranda rights and considered the statements made during the second interview to be covered by the prophylactic rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (suspect who requests counsel during custodial interrogation is not subject to further interrogation until counsel is provided). It is well established, however, that the Fifth Amendment right to counsel under Miranda does not vest until a defendant is taken into custody. See, e.g., Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631 (1986) (“The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations.”); United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1981) (prior to noncustodial interrogation, “Miranda warnings need not be given”). Therefore, if Hines was not in custody during the first interview, the reference to his lawyer at that time cannot be considered an invocation of Miranda rights.
Because the district court made no determination as to whether the defendant was in custody during either interview, we would ordinarily remand for factual findings. We need not remand, however, for even if we assume that Hines was in custody during both interviews, and that he properly invoked his Miranda rights at the first interview, he cannot claim the protection of the Fifth Amendment for two reasons: (1) there was a break in custody between the first and second interviews, and (2) the district court found that Hines knowingly and intelligently waived his right to counsel at the second interview.
In United States v. Skinner, 667 F.2d 1306 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983), we held that the Edwards rule does not apply to suspects who are not in continuous custody between the time they request counsel and the time they are reinter-rogated. In Skinner, the defendant went to the police station voluntarily and left after expressing a desire to speak with an attorney. The next morning, Skinner was arrested and signed a waiver before confessing; the reinterrogation in the absence of counsel was allowed because of the intervening break between his invocation of Miranda rights and his voluntary confession. Id. at 1309.
In this case, Hines does not dispute that, between the first and second interviews, he was not in “custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). This “Skinner break” is sufficient to defeat application of the Edwards rule against reinterrogation. Moreover, at the suppression hearing, the district court concluded that Hines validly waived his right to counsel before the second interview on April 21. We therefore hold that the Fifth Amendment does not require that the April 21 statements be suppressed.
II
Hines also claims that the Sixth Amendment prevents the admission of his statements on April 21. The Sixth Amendment right to counsel, however, does not attach until the initiation of the first adversarial proceedings against the defendant. Jackson, 475 U.S. at 629, 106 S.Ct. at 1407 (“The arraignment signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment.”) (quoting United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984)).
In McNeil v. Wisconsin, — U.S. —, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991), the Court declared, “The Sixth Amendment right ... is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced....” The McNeil Court went on to add:
The police have an interest ... in investigating new or additional crimes [after an individual is formally charged with one crime.] ... [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activi-ties_ Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.
McNeil, 111 S.Ct. at 2207-08 (quoting Maine v. Moulton, 474 U.S. 159, 179-80 & n. 16, 106 S.Ct. 477, 489 & n. 16, 88 L.Ed.2d 481 (1985)). The Sixth Amendment thus does not bar Hines’s admissions during the second, interview, which pertained to activities for which he had not yet been indicted.
An exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense. See United States v. Cooper, 949 F.2d 737, 743-44 (5th Cir.1991) (holding that uncharged federal offense of unlawful possession of unregistered firearm was not inextricably intertwined with pending state charge of armed robbery involving the same weapon), cert. denied, — U.S. —, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992).
The pending December charge is logically distinct from the uncharged January offense. Although it was the same offense, the place, time, and persons involved were all different. Because the charges are separate and distinct, there was no Sixth Amendment violation, which would necessitate suppression of the contested statement.
Absent a Sixth Amendment violation by way of investigation of activities inextricably intertwined with pending charges, Hines is not entitled to suppression of the evidence unless the government breached its “affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Moulton, 474 U.S. at 171, 106 S.Ct. at 484. Hines contends that the government’s subsequent joinder of the December charges with the January charges violated its affirmative obligation not to act in a manner which diluted Hines’s Sixth Amendment rights.
Here, there is no evidence that the state or federal government “knowingly circumvented Hines’s] right to the assistance of counsel.” Id. at 180, 106 S.Ct. at 489. The agent was careful to question Hines only about the January activities (which were uncharged at the time of questioning), and there is no evidence that the state’s dismissal of the January charges and the federal government’s subsequent joinder of the same charges were the result of collusion between the authorities. Because neither government breached its “affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking” the Sixth Amendment, id. at 176, 106 S.Ct. at 487, joinder of the charges did not violate Hines’s right to counsel. Compare United States v. Mitcheltree, 940 F.2d 1329, 1340-43 (10th Cir.1991) (joinder of “theoretically distinct” charges violated Sixth Amendment where government surreptitiously recorded defendant’s conversation with informant, who inquired into pending charges) and United States v. Terzado-Madruga, 897 F.2d 1099, 1110-11 (11th Cir.1990) (approving district court’s severance of new and pending charges where informant elicited incriminating information about pending charges and government recorded conversation) with United States v. Roberts, 869 F.2d 70, 73-74 (2d Cir.1989) (joinder of new and pending charges allowed where government questioned defendant about uncharged and unrelated activities, and defendant waived Fifth and Sixth Amendment rights).
REVERSED AND REMANDED.
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
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Petitioner
v.
Naiel NASSAR.
No. 12-484.
Supreme Court of the United States
Argued April 24, 2013.
Decided June 24, 2013.
Daryl L. Joseffer, Washington, DC, for Petitioner.
Brian P. Lauten, Dallas, TX, for Respondent.
Melissa Arbus Sherry, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.
Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, David C. Mattax, Deputy Attorney General for Defense Litigation James "Beau" Eccles, Division Chief-General Litigation, Office of the Attorney General, Daryl L. Joseffer, Counsel of Record, Carolyn M. Sweeney, King & Spalding LLP, Washington, DC, Michael W. Johnston, Merritt E. McAlister, King & Spalding LLP, Atlanta, GA, Lars Hagen, Assistant Attorney General, Office of the Attorney General, Austin, TX, Myrna Salinas Baumann, King & Spalding LLP, Austin, TX, for Petitioner.
Michael T. Kirkpatrick, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, Charla Aldous, Brent Walker, Aldous Law Firm, Dallas, TX, Brian P. Lauten, Counsel of Record, Sawicki & Lauten, LLP, Dallas, TX, for Respondent.
Justice KENNEDY delivered the opinion of the Court.
When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.
Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See § 2000e-2(a). The second type of conduct is employer retaliation on account of an employee's having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See § 2000e-3(a).
An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§ 2000e-2(m), 2000e-5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under § 2000e-3(a).
Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here.
I
Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University's students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University's faculty members, see App. 361-362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.
Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University's faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.
In 2004, Dr. Beth Levine was hired as the University's Chief of Infectious Disease Medicine. In that position Levine became respondent's ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that " 'Middle Easterners are lazy.' " 674 F.3d 448, 450 (C.A.5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University's Chair of Internal Medicine and Levine's supervisor, to complain about Levine's alleged harassment. Despite obtaining a promotion with Levine's assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University's faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, " 'stems from ... religious, racial and cultural bias against Arabs and Muslims.' " Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent's accusations, saying that Levine had been "publicly humiliated by th[e] letter" and that it was "very important that she be publicly exonerated." App. 41.
Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement's requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.
After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under § 2000e-2(a). Respondent alleged that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University. Respondent's second claim was that Dr. Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine's harassment, in violation of § 2000e-3(a). 674 F.3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.
On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury's verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under § 2000e-3(a) -like claims of status-based discrimination under § 2000e-2(a) -require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F.3d 320, 330 (C.A.5 2010) ). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict.
Four judges dissented from the court's decision not to rehear the case en banc, arguing that the Circuit's application of the motivating-factor standard to retaliation cases was "an erroneous interpretation of [Title VII] and controlling caselaw" and should be overruled en banc. 688 F.3d 211, 213-214 (C.A.5 2012) (Smith, J., dissenting from denial of rehearing en banc).
Certiorari was granted. 568 U.S. ----, 133 S.Ct. 978, 184 L.Ed.2d 758 (2013).
II
A
This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact-i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury-is a standard requirement of any tort claim, see Restatement of Torts § 9 (1934) (definition of "legal cause"); § 431, Comment a (same); § 279, and Comment c (intentional infliction of physical harm); § 280 (other intentional torts); § 281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (In intentional-discrimination cases, "liability depends on whether the protected trait" "actually motivated the employer's decision" and "had a determinative influence on the outcome"); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (explaining that the "simple test" for determining a discriminatory employment practice is "whether the evidence shows treatment of a person in a manner which but for that person's sex would be different" (internal quotation marks omitted)).
In the usual course, this standard requires the plaintiff to show "that the harm would not have occurred" in the absence of-that is, but for-the defendant's conduct. Restatement of Torts § 431, Comment a (negligence); § 432(1), and Comment a (same); see § 279, and Comment c (intentional infliction of bodily harm); § 280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that "cases invoking the concept are rare"). See also Restatement (Second) of Torts § 432(1) (1963 and 1964) (negligence claims); § 870, Comment l (intentional injury to another); cf. § 435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action "is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003) ; Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).
B
Since the statute's passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them-race, color, religion, sex, and national origin-are personal characteristics and are set forth in § 2000e-2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct-the employee's opposition to employment discrimination, and the employee's submission of or support for a complaint that alleges employment discrimination-are not wrongs based on personal traits but rather types of protected employee conduct.
These latter two categories are covered by a separate, subsequent section of Title VII, § 2000e-3(a).
Under the status-based discrimination provision, it is an "unlawful employment practice" for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken "because of" an individual's race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a "motivating" or "substantial" factor in the employer's decision. 490 U.S., at 258, 109 S.Ct. 1775 (plurality opinion); id., at 259, 109 S.Ct. 1775 (White, J., concurring in judgment); id., at 276, 109 S.Ct. 1775 (O'Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258, 109 S.Ct. 1775 (plurality opinion); id., at 259-260, 109 S.Ct. 1775 (opinion of White, J.); id., at 276-277, 109 S.Ct. 1775 (opinion of O'Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action.
Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of § 2000e-2, i.e., Title VII's principal ban on status-based discrimination. See § 107(a), 105 Stat. 1075. The new provision, § 2000e-2(m), states:
"[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
This, of course, is a lessened causation standard.
The 1991 Act also abrogated a portion of Price Waterhouse 's framework by removing the employer's ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343. In its place, Congress enacted § 2000e-5(g)(2), which provides:
"(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court-
"(i) may grant declaratory relief, injunctive relief ... and [limited] attorney's fees and costs ...; and
"(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment...."
So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse . Under that new regime, a plaintiff could obtain declaratory relief, attorney's fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer's proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343; see also id., at 175, n. 2, 177, n. 3, 129 S.Ct. 2343.
After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of "because" and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U.S.C. § 623(a). See Gross, supra .
Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that " '[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.' " 557 U.S., at 176, 129 S.Ct. 2343 (quoting § 623(a)(1) ; emphasis and ellipsis in original).
Concentrating first and foremost on the meaning of the phrase " 'because of ... age,' " the Court in Gross explained that the ordinary meaning of " 'because of' " is " 'by reason of' " or " 'on account of.' " Id., at 176, 129 S.Ct. 2343 (citing 1 Webster's Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the "requirement that an employer took adverse action 'because of' age [meant] that age was the 'reason' that the employer decided to act," or, in other words, that "age was the 'but-for' cause of the employer's adverse decision." 557 U.S., at 176, 129 S.Ct. 2343. See also Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (noting that "because of" means "based on" and that " 'based on' indicates a but-for causal relationship"); Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265-266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (equating "by reason of" with " 'but for' cause").
In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse . Noting that "the ADEA must be 'read ... the way Congress wrote it,' " 557 U.S., at 179, 129 S.Ct. 2343 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 102, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) ), the Court concluded that "the textual differences between Title VII and the ADEA" "prevent[ed] us from applying Price Waterhouse ... to federal age discrimination claims," 557 U.S., at 175, n. 2, 129 S.Ct. 2343. In particular, the Court stressed the congressional choice not to add a provision like § 2000e-2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174-175, 129 S.Ct. 2343 (citing EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ); 557 U.S., at 177, n. 3, 129 S.Ct. 2343 (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 270, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) ).
Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U.S., at 178, n. 5, 129 S.Ct. 2343. This different reading was necessary, the Court concluded, because Congress' 1991 amendments to Title VII, including its "careful tailoring of the 'motivating factor' claim" and the substitution of § 2000e-5(g)(2)(B) for Price Waterhouse 's full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U.S., at 178, n. 5, 129 S.Ct. 2343.
In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term "because" as it relates to the principles of causation underlying both § 623(a) and § 2000e-3(a). The second is the significance of Congress' structural choices in both Title VII itself and the law's 1991 amendments. These principles do not decide the present case but do inform its analysis, for the issues possess significant parallels.
III
A
As noted, Title VII's antiretaliation provision, which is set forth in § 2000e-3(a), appears in a different section from Title VII's ban on status-based discrimination. The antiretaliation provision states, in relevant part:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee "because" of certain criteria. Cf. 29 U.S.C. § 623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. See Gross, supra, at 176, 129 S.Ct. 2343.
The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which-on its face-applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) § 2000e-2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for-and not necessarily the but-for factor in-the challenged employment action; and (3) the Court has, as a matter of course, held that "retaliation for complaining about race discrimination is 'discrimination based on race.' " Brief for United States as Amicus Curiae 14; see id., at 11-14; Brief for Respondent 16-19.
There are three main flaws in this reading of § 2000e-2(m). The first is that it is inconsistent with the provision's plain language. It must be acknowledged that because Title VII defines "unlawful employment practice" to include retaliation, the question presented by this case would be different if § 2000e-2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to "unlawful employment practices," then proceeds to address only five of the seven prohibited discriminatory actions-actions based on the employee's status, i.e., race, color, religion, sex, and national origin. This indicates Congress' intent to confine that provision's coverage to only those types of employment practices. The text of § 2000e-2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope. Gardner v. Collins, 2 Pet. 58, 93, 7 L.Ed. 347 (1829) ("What the legislative intention was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words"); see Sebelius v. Cloer, 569 U.S. ----, ----, 133 S.Ct. 1886, 1894, 185 L.Ed.2d 1003 (2013).
The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross, 557 U.S., at 175, n. 2, 178, n. 5, 129 S.Ct. 2343. Just as Congress' choice of words is presumed to be deliberate, so too are its structural choices. See id., at 177, n. 3, 129 S.Ct. 2343. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within § 2000e-2, which contains Title VII's ban on status-based discrimination, § 2000e-2(a) to (d), (l ), and says nothing about retaliation. See 1991 Act, § 107(a), 105 Stat. 1075 (directing that " § 2000e-2... [be] further amended by adding at the end the following new subsection ... (m)"). The title of the section of the 1991 Act that created § 2000e-2(m) -"Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices"-also indicates that Congress determined to address only claims of status-based discrimination, not retaliation. See § 107(a), id., at 1075.
What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from § 2000e-2(m). See Arabian American Oil Co., 499 U.S., at 256, 111 S.Ct. 1227 (congressional amendment of ADEA on a similar subject coupled with congressional failure to amend Title VII weighs against conclusion that the ADEA's standard applies to Title VII); see also Gross, supra, at 177, n. 3, 129 S.Ct. 2343. The relevant portion of the 1991 Act, § 109(b), allowed certain overseas operations by U.S. employers to engage in "any practice prohibited by section 703 or 704," i.e., § 2000e-2 or § 2000e-3, "if compliance with such section would cause such employer ... to violate the law of the foreign country in which such workplace is located." 105 Stat. 1077.
If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in § 109. See Arabian American Oil Co., supra, at 256, 111 S.Ct. 1227 Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as § 2000e-5, which establishes the rules and remedies for all Title VII enforcement actions. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). But in writing § 2000e-2(m), Congress did neither of those things, and "[w]e must give effect to Congress' choice." Gross,supra, at 177, n. 3, 129 S.Ct. 2343.
The third problem with respondent's and the Government's reading of the motivating-factor standard is in its submission that this Court's decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has "read [a] broadly worded civil rights statute ... as including an antiretaliation remedy." CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-453, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). In CBOCS, for example, the Court held that 42 U.S.C. § 1981 -which declares that all persons "shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens"-prohibits not only racial discrimination but also retaliation against those who oppose it. 553 U.S., at 445, 128 S.Ct. 1951. And in Gómez-Pérez v. Potter, 553 U.S. 474, 128 S.Ct.
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_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.
Isador D. CHAVEZ v. UNITED STATES of America.
No. 5556.
United States Court of Appeals Tenth Circuit.
March 9, 1957.
Isaac S.. Willson, Denver, Colo., for .appellant.
Donald E. Kelley, U. S. Atty., and Robert S. Wham, Asst. U. S. Atty., Denver, ■Colo., for appellee..
Before’BRATTON, Chief Judge, and MURRAH, Circuit Judge.
PER CURIAM.
Affirmed without written opinion.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Lendale HEARN and Murray Taylor, Defendants-Appellants.
Nos. 73-1603, 73-1604.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 4, 1973.
Decided May 7, 1974.
Edward Witt Chandler, McKenzie, Tenn. (Court Appointed), for Lendale Hearn.
Allen J. Strawbridge, Jr., Martin, Tenn., for Murray Taylor.
Glen Reid, Jr., Asst. U. S. Atty., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.
Before CELEBREZZE, Circuit Judge, McALLISTER, Senior Circuit Judge, and WILSON, District Judge
The Honorable Frank W. Wilson, Chief Judge, of Tennessee, sitting by designation. U. S. District Court for the Eastern District
FRANK W. WILSON, District Judge.
Lendale Hearn and Murray Taylor were convicted of having engaged in a criminal conspiracy to receive and conceal stolen goods moving in interstate commerce in violation of 18 U.S.C. § 371. In addition, Taylor was convicted of the substantive offense of receiving and concealing stolen goods moving in interstate commerce in violation of 18 U.S.C. § 2315. Hearn received a three year sentence, with all but six months having been suspended, and with 30 months probation to follow. Taylor received two concurrent sentences of a year and a day, together with a fine of $500.00 upon each of the two counts upon which he was convicted. The principal contentions of error made by each appellant in these appeals, which have been consolidated for hearing, center around the admissibility of evidence obtained in the course of certain searches and seizures and the sufficiency of the evidence to warrant their respective convictions.
The record upon these appeals reflects • that the appellants were indicted jointly with two other individuals, L. J. Griffin and Dewey Berryhill, in a four-count indictment. The first count charged all four defendants with having engaged in a conspiracy to transport, receive and conceal stolen property and stolen motor vehicles moving in interstate commerce. The second and third counts charged the co-defendant Griffin with the substantive offense of receiving and concealing stolen property moving in interstate commerce. The fourth count charged the appellant Taylor with the substantive offense of receiving and concealing stolen property moving in interstate commerce. Upon the trial of the case the jury found Hearn, Taylor and Griffin guilty upon the conspiracy count but acquitted the co-defendant Berryhill on that count. In addition, Griffin was found guilty upon the second and third counts and Taylor was found guilty upon the fourth count. No appeal was taken by the co-defendant Griffin in regard to his convictions.
The appellants, Hearn and Taylor, contend, among other matters, that the evidence was insufficient to support their respective convictions. The settled rule, in this regard, is that in reviewing the sufficiency of the evidence to support a conviction this Court “ . cannot weigh the evidence but we must take the view of it, and the inferences reasonably and justifiably to be drawn from it, most favorable to the Government and determine therefrom whether a verdict against the appellant might have been lawfully rendered . . .” United States v. Wolfenbarger, 426 F.2d 992 (6th Cir. 1970).
When all reasonable inferences are accorded and the evidence is viewed in the light most favorable to the Government, the jury could have found the following facts, having reference to the charges in the first count of the indictment, to have been established beyond a reasonable doubt. Sometime during the evening of Sunday, October 3, 1971, a Model #2200 Massey-Ferguson tractor, having a front end loader on one end and a baekhoe on the other and having a value of $5,500.00 (which equipment will hereinafter be referred to simply as a backhoe), was stolen from the premises of its owner, the McBride Construction Company, in Paris, Tennessee. The baekhoe, which was painted yellow and had certain distinctive features, including plastic sleeves placed over the hydraulic lines by the owner to afford additional protection to those lines, was loaded at the time of the theft upon a yellow 3-axle metal trailer, which in turn was hitched to a yellow truck. All three pieces of equipment were stolen upon the occasion of October 3,1971.
Sometime during the first part of October, 1971, the defendant Hearn, accompanied by the co-defendant Berryhill, was observed driving a truck and trailer loaded with a baekhoe, all of the equipment being of the same description as the stolen equipment, in Weakley County, Tennessee, which adjoins Henry County where Paris, Tennessee is located. Upon this occasion the defendant Hearn was observed making a delivery of the baekhoe to the co-defendant Griffin at his farm in Weakley County, Tennessee. Hearn and Griffin conversed for some 30 minutes at the time of this delivery and then Hearn left, driving the truck and trailer, but leaving the‘backhoe with Griffin. About a week after the theft occurred, the truck and trailer were discovered abandoned along the highway in Weakley County, Tennessee, and were returned to their owner.
The defendant Taylor also lived on a farm in Weakley County, Tennessee, his farm being some three miles from the farm of the defendant Griffin. During the months of October and November 1971, Taylor was observed to have on his farm a baekhoe of the same make, model and description, and having the same distinctive features as the stolen backhoe. He told an acquaintance that he had obtained the baekhoe from a certain individual. Upon the trial that individual denied the statement. During the time that Taylor had the baekhoe he allowed a neighbor to use it. Several persons who observed the baekhoe on this occasion testified that it was the same piece of equipment as the baekhoe that they inspected at the McBride Construction Company when the stolen baekhoe was recovered. When Taylor retrieved the baekhoe from his neighbor, he stated that he had to deliver it to someone else. In February of 1972, after the stolen baekhoe had been recovered, Taylor was interviewed by the F.B.I. and denied that he had ever had a baekhoe in his possession or on his farm.
In late December 1971, the defendant Griffin delivered the baekhoe to an equipment dealer in Marion, Arkansas, with instructions that he rent it or sell it for him. On this occassion, Griffin, quoted such a low price on the equipment that the dealer asked if it were “hot,” to which Griffin replied, “It may be a little warm.” In another conversation Griffin advised the dealer that he would get rid of the baekhoe “if I have to run it off in the river.”
On January 8, 1972, Griffin picked up the baekhoe in Marion, Arkansas, and transported it back to his farm in Weakley County, Tennessee. On January 14, 1972, the baekhoe was found in a tool shed on Griffin’s farm by local law enforcement officers in the course of a search of the premises.
In addition to the foregoing evidence regarding the baekhoe, evidence was introduced in regard to a motorcycle referred to in one of the overt acts alleged in the conspiracy count. That evidence reflected that a Honda motorcycle, bearing a certain identification number, was stolen in LaFayette, Louisiana, on a date believed by the owner to have been in about October of 1971. The defendant Hearn was shown to have returned from the vicinity of LaFayette, Louisiana, to Weakley County, Tennessee, in an enclosed truck during the latter part of September of 1971. In December of 1971 Griffin traded the Honda for another piece of equipment at a motorcycle shop in Union City, Tennessee.
The fourth count of the indictment charged the appellant Taylor with the substantive offense of receiving and concealing a stolen traxeavator moving in interstate commerce. When the evidence in regard to this count is viewed in a light most favorable to the Government, the jury could find the following facts to have been established beyond a reasonable doubt. Upon March 17, 1971, a new Caterpillar traxeavator, Model No. 955K, bearing a certain identification number and having a value of $31,000 was stolen from the S & W Construction Company in Memphis, Tennessee. Upon October 15, 1971, the traxeavator was recovered by the police in Gary, Indiana. Two days later the traxeavator was again stolen, this time from the lot where the police had stored the equipment. Upon January 12, 1972, the traxcavator was located in a barn upon the farm of the appellant Taylor in Weakley County, Tennessee, during the course of a search of the premises by local law enforcement officers. Bales of hay had been placed around the traxeavator to conceal its presence in the barn. Taylor had purchased the hay some months previous to feed two horses which he kept in the barn lot. When shown the traxeavator following its discovery, Taylor remarked to the officers “You would-n’t believe that somebody could put this in my barn and me not know it.”
Upon the foregoing state of the record it is clear that sufficient evidence exists to support the verdict as to both Hearn and Taylor upon the conspiracy count. It is contended that evidence of a conspiratorial agreement is lacking. While the evidence may be insufficient to establish a conspiratorial agreement regarding the transportation of the motorcycle, there is a clear sufficiency of the evidence to establish a conspiratorial agreement regarding the receiving and concealing of the backhoe. It is not necessary that the proof establish a formal agreement in this regard. It is sufficient if the unlawful agreement may be inferred from all of the circumstances. As stated by this Court in the case of Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956);
“Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a development and collocation of circumstances.”
It is likewise clear that the evidence is sufficient to support the jury vefdict finding the appellant Taylor guilty of receiving and concealing the traxeavator as charged in the fourth count of the indictment.
However, with respect to each of; the foregoing counts it is contended by the appellants that evidence obtained as a result of an unlawful search was improperly admitted in the course of their trial, and that the verdict was rendered invalid accordingly. Regarding the conspiracy count, it is contended that the trial court was in error in failing to sustain the motion of each defendant seeking to suppress evidence obtained as a result of the search of the co-defendant Griffin’s farm, which search led to the discovery of the backhoe in his tool shed. Regarding the fourth count, it is contended that the trial court was in error in failing to sustain the motion of the defendant Taylor to suppress evidence obtained as a result of a search leading to the discovery of the traxcavator in his barn. This Court must accordingly turn its attention to these contentions.
With respect to the search which led to the discovery of the stolen backhoe in the tool shed of the co-defendant Griffin, certain additional facts become relevant. As previously noted, upon January 8, 1972, Griffin returned the backhoe from Marion, Arkansas, to Weakley County, Tennessee. There was also evidence in the record which would reflect that upon the same weekend Griffin stole a Model B-4 Caterpillar Bulldozer from the dealer in Marion, Arkansas, and transported it to Weakley County, Tennessee, where he concealed it on an abandoned farm near his home, a matter for which he was convicted as charged in the second count of the indictment. When local law enforcement officers received information regarding the theft of the bulldozer, they obtained a warrant to search the Griffin farm for it. In the course of an unsuccessful search for the bulldozer, they discovered a backhoe in the tool shed and secured its identification number. Using this means to confirm that the backhoe was stolen, they obtained a search warrant and returned to the premises and seized the backhoe, which was the stolen equipment referred to in the conspiracy count.
It appears, however, as asserted by the appellants, that each of the above referred to search warrants was defective in one or more respects, including the fact that they each recited that the information contained therein had been obtained from an informant whose identity was not stated and whose reliability was not reflected so as to enable the magistrate to form a judicial opinion thereon, all as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
In response to this contention, it is the position of the Government that the appellants had no interest in the premises where the backhoe was found, and therefore have no standing to question the legality of the search of those premises. It is true, as contended by the Government, that neither Hearn nor Taylor has ever asserted any interest in the backhoe or in the Griffin premises that were searched.
It is well settled, of course, that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In order to have standing to object to an unlawful search, a person must have been the victim of the unlawful search. That is, he must have been the person against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search directed at another.
As a basis for asserting the right to object to the search of Griffin’s premises, the appellants make two contentions. Relying upon McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L. Ed. 153 (1948), they assert that if one co-defendant has standing to challenge an unlawful search, all other co-defendants likewise have standing. Relying upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1968), they assert that where possession is an essential element of the offense charged, all defendants charged with such possession have standing to challenge an unlawful search regardless of any lack of personal interest in the premises searched or the property seized.
The foregoing general propositions are not, however, an accurate statement of the present law. Any bases for drawing such general propositions of law from the cases of McDonald v. United States, swpra, and Jones v. United States, supra, have been largely, if not wholly, removed by the later cases of Alderman v. United States, 394 U.S. 165, 173 n. 7, 89 S.Ct. 961, 22 L.Ed.2d 176, 186 n. 7 (1968) (limiting the automatic standing rule of McDonald to guests “on the premises searched”) and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (forbidding the use upon trial of pretrial admissions against interest made to achieve Fourth Amendment standing in a motion to suppress evidence, thereby removing much of the rationale for the automatic standing rule enunciated in Jones v. United States).
Furthermore, the present case, involving as it does co-defendants to a conspiracy charge seeking to assert Fourth Amendment standing through a co-conspirator, would come within the rules only recently laid down in the case of Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In Brown two defendants were convicted of conspiring with a third to transport stolen goods in interstate commerce. Evidence obtained from an unlawful search of the co-conspirator’s premises was admitted in the separate trial of the other two defendants. Concluding that no- error was made in thus admitting the evidence as to the two defendants who “failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized,” the Court stated:
“[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure . . .” 411 U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed.2d at 214.
The appellants seek to avoid the rules laid down in Brown and maintain standing to assert Fourth Amendment rights with regard to the search of their co-defendant’s premises both by distinguishing the facts in Brown from the present case and by asserting that possession at the time of the search was an essential element of the offense with which they were charged and convicted.
In seeking to distinguish Brown they assert that no prior illegal search was there involved, that, unlike the present case, the conspiracy charged was limited to a date prior to the date of the search under attack and that the offense charged in Brown was a conspiracy to transport, and not a conspiracy to receive and conceal, the contention here being that, unlike Brown, possession is an essential element of the offense for which the appellants were charged and convicted. These distinctions, however, are of no avail. The appellants would no more have' standing to complain of a prior search of the Griffin premises than they would to complain of the search under attack. All other attempted distinctions are predicated either upon the assumption that a co-conspirator’s claim of constructive possession is sufficient to accord him standing, an invalid assumption and one implicitly rejected in footnote number 4 of the Brown opinion, or upon the assumption that possession at the time of seizure is an essential element of the crime of conspiracy to receive and conceal, an invalid legal deduction. Possession, on the day of seizure or otherwise, is not an essential element of the crime of conspiracy to receive and conceal. The crime of conspiracy is not the same as the substantive crime which is the objective of the conspiracy. The gist of the crime of conspiracy to receive and conceal is the unlawful agreement to receive and conceal, accompanied by one or more acts in furtherance of the unlawful agreement. United States v. Ketola, 455 F.2d 83, 85 (9th Cir. 1972).
Applying the rules laid down in Brown v. United States, supra, to the facts of this case, the appellants were without standing to object to the search of their co-defendant’s premises and the evidence obtained as a result of the search was properly admitted as to them.
Turning to the contention of the appellant Taylor that the trial court was in error in failing to suppress evidence obtained as a result of the search leading to the discovery of the traxcavator in his barn, certain facts additional to those heretofore stated become relevant. Upon January 12, 1972, local law enforcement officers obtained a state warrant to search the defendant Taylor’s premises for a stolen Hobart Welder. Having located the welder at one outbuilding, they continued the search by going to a barn some 150 yards away where they located the traxcavator concealed behind bales of hay. Taylor was not present on the farm at the time of this search. He returned shortly thereafter, however, and was told by the officers of their seizure of the stolen welder. A warrant of arrest having been procured in the meanwhile by one of the officers, Taylor was advised of his arrest and of his constitutional rights in regard thereto. Without disclosing their prior search of his barn, the officers then proceeded to interrogate Taylor regarding the traxcavator. Although there is some variance in the testimony at this point, the following testimony of one of the officers is representative of that which occurred:
“The best I remember, one of us asked him about the caterpillar and he said that he didn’t know anything about a caterpillar being in the barn, that he put that hay in there some time ago, six or eight months, and had not been back in that barn since that time and knew nothing about it. So I believe I made the statement to him then: Well, Mr. Taylor, we don’t want to charge you with anything that you don't know anything about, so let’s go look at it.’ ”
In response to this, Taylor said, “Well, let’s go see it.” With Taylor leading the way, he and the officers then went to the barn. Upon observing the traxcavator concealed behind the hay, Taylor remarked, “You wouldn’t believe that somebody could put this in my barn and me not know it.” At no time during these proceedings was Taylor physically restrained in any manner. After the traxcavator was “discovered,” he was permitted to go on his way and turn himself in at the jail later in the day.
Since the search warrant for the Hobart Welder was defective in that it, too, failed to provide adequate facts in regard to the reliability of the informer, as required by Aguilar v. Texas, supra, and Spinelli v. United States, supra, and since it is clear that the continuation of the search after location of the Hobart Welder did not comport with constitutional standards, Marron v. United States, 275 U.S. 192, 48 S.Ct. 741, 72 L.Ed. 231 (1927); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the admission of evidence concerning the location and discovery of the traxcavator can only be supported upon the theory that Taylor’s statements and actions in going to the barn rendered the search on that occasion a consential one.
The trial court found the search to have been a consential one. Before this finding can be overruled, it must be found to have been clearly erroneous. See United States v. Rose, 415 F.2d 742 (6th Cir. 1969), cert. denied, 396 U.S. 971, 90 S.Ct. 458, 24 L.Ed.2d 438 (1969).
It has long been recognized that consential searches are “reasonable” and thus may lawfully be made without a search warrant. Nor does a prior unlawful search render evidence obtained by a subsequent consential search inadmissible, United States v. Willis, 473 F. 2d 450 (6th Cir. 1973), although, as shall be shortly noted, the use of unlawfully obtained information in procuring consent is a relevant fact to consider in determining the voluntary nature of the consent.
The guidelines for testing the validity of a search asserted to have been made with the consent of the accused are those set forth in the recent case of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). As stated by the Court in that case: “The constitutional question in the present case concerns the definition of ‘consent’ in the Fourth and Fourteenth Amendments context.” Starting with the premises that “when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given,” 412 U.S. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 860, the Supreme Court rejected the theory that to establish “consent” the prosecution must establish a constitutional “waiver,” that is, “an intentional relinquishment or abandonment of a known right or privilege.” Rather, the Court concluded that voluntariness “is a question of fact to be determined from the totality of all the circumstances.” and “it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the ■ unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.” 412 U.S. at 227, 93 S.Ct. at 2048, 36 L.Ed.2d at 863.
Thus, the presence or absence of a single consential or coercive factor is not of itself controlling as a matter of law. As illustratively pointed out by the Court:
“Some of the factors taken into account have included the youth of the accused . . . his lack of education ... or his law intelligence; * * * the lack of any advice to the accused of his constitutional rights, the length of detention . . . the repeated and prolonged nature of the questioning and the use of physical punishment, such as the deprivation of food or sleep ... In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted.” (Citations omitted) 412 U.S. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.
Applying the guidelines in Schneckloth v. Bustamonte to the facts 'of the present case, the factors tending to establish a voluntary and uncoerced consent on the part of the appellant Taylor to the search of his premises include: (a) his having been initially given his Miranda advice of rights incident to his arrest on the stolen welder charge; (b) his continued freedom of movement and the lack of any physical restraint incident to his arrest upon the stolen welder charge; (c) his presence on his own farm and in familiar surroundings; (d) his acquiescence in the officer’s suggestion to “go look at it” (i. e., the traxcavator) and his affirmative response, “Well, let’s go see it”; and (e) his leading the way to the barn and in mounting the bales of hay in advance of the others.
Upon the other hand, factors tending to establish an involuntary and coercive consent search include: (a) the presence of three law enforcement officers on his farm; (b) his initial arrest upon the stolen welder charge; (c) the suggestion by the officers that the barn be inspected for the presence of the traxcavator; (d) the use by the officers of information gained by a prior unlawful search as the predicate for their suggestion that the barn be inspected for the presence of the traxcavator; and (e) the absence of any warning to the appellant that he had a constitutional right to refuse to consent to a search of the barn.
An evaluation of the foregoing would indicate to this Court that the coercive factors, though some of them are subtle and implicit, would nevertheless substantially outweigh the non-coercive ones. As stated in the Schneckloth case:
“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents’” 412 U.S. at 229, 93 S.Ct. at 2049, 36 L.Ed.2d at 864. Bearing in mind that consent must be proved by “clear and positive testimony,” Amos v. United States 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and “must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion,” Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965), this Court is of the opinion that such consent as was here involved was not “freely and voluntarily” given and that the conclusion of the trial court to the contrary was clearly erroneous. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (consent held invalid where given on officer’s representation that he had a search warrant). See also Villano v. United States, 310 F.2d 680 (10th Cir. 1962) citing United States v. Page, 302 F.2d 81 (9th Cir. 1962) (“The Government’s burden is greater where consent is claimed to have been given while the defendant is under arrest”).
Furthermore, under the facts of this case, the same result would be required by the application of the legal principle that information gained by law enforcement officers during an illegal search cannot be used in a derivative manner to obtain other evidence, the so-called “fruit of the poisonous tree” doctrine. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). See also Fike v. United States 449 F.2d 191 (5th Cir. 1971); United States v. Brandon, 467 F.2d 1008 (9th Cir. 1972); United States v. Cole, 463 F.2d 163 (2nd Cir. 1972) .
Other matters of less import are complained of by the appellants. These have been considered by this Court and are found to be without merit.
The conviction of each appellant upon Count I of the indictment (conspiracy) will be affirmed. The conviction of the appellant Taylor upon Count IV of the indictment (receiving and concealing) will be set aside and a new trial granted upon that count.
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_casetyp1_6-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JONES PACKING COMPANY, Respondent.
No. 17934.
United States Court of Appeals Sixth Circuit.
June 21, 1968.
Joseph A. Yablonski, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Gary Green, Marsha Swiss, Attys., N. L. R. B.,
Washington, D. C., on brief, for petitioner.
Joseph A. Yocum, Evansville, Ind., Arthur R. Donovan, Harry P. Dees, Joseph A. Yocum, Evansville, Ind., on brief; Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel, for respondent.
Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges.
PER CURIAM.
On review of this entire record, this court finds substantial evidence to support the findings of § 8(a) (1) and § 8 (a) (5) violations of the National Labor Relations Act, 29 U.S.C. § 158 (1964). NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965) ; NLRB v. Cumberland Shoe Corp., 351 F. 2d 917 (6th Cir. 1965); NLRB v. Delight Bakery, Inc., 353 F.2d 344 (6th Cir. 1965).
Enforcement of the Board’s order is granted.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. PERALES
No. 108.
Argued January 13, 1971
Decided May 3, 1971
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, White, and Marshall, JJ., joined. Douglas, J., filed a dissenting opinion, in which Black and Brennan, JJ., joined, post, p. 411.
Deputy Solicitor General Friedman argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Ruckels-haus, Assistant Attorney General Gray, Lawrence G. Wallace, Kathryn H. Baldwin, and Michael C. Farrar.
Richard Tinsman, by appointment of the Court, 398 U. S. 902, argued the cause and filed a brief for respondent.
Briefs of amici curiae were filed by Franklin M. Schultz and John T. Miller, Jr., for the American Bar Association; by Frank P. Christian, Harry B. Adams III, and Melvin N. Eichelbaum for the Bexar County Legal Aid Association; and by Jonathan Weiss for the Appalachian Research and Defense Fund et al.
Me. Justice Blackmun
delivered the opinion of the Court.
In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 6' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216 (i) (1), 68 Stat. 1080, and 223 (d)(1), 81 Stat. 868, of that Act, 42 U. S. C. § 416 (i) (1) and 42 U. S. C. § 423 (d)(1) (1964 ed., Supp. V), both provide that the term “disability” means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . ,” Section 205 (g), 42 TJ. S. C. §405 (g), relating to judicial review, states, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .”
The issue here is whether physicians’ written reports of medical examinations they have made of a disability claimant may constitute “substantial evidence” supportive of a finding of nondisability, within the § 205 (g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.
I
In his claim Perales asserted that on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L-5 was advised. The patient at first hesitated about surgery and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin. No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: “Nerve root compression syndrome, left.” The patient was discharged from Dr. Munslow’s care on January 25, 1966, with a final diagnosis of “Neuritis, lumbar, mild.”
Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work.
In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final discharge diagnosis was: “Back sprain, lumbo-sacral spine.”
Perales then filed his claim. As required by § 221 of the Act, 42 U. S. C. § 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: “Back sprain — lumbo-sacral spine,” this time “moderately severe,” with “Ruptured disk not ruled out.” The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25.
Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales’ being “on crutches or cane” since his injury. He noted a slightly edematous condition in the legs, attributed to “inactivity and sitting around”; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and “a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move.” Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a “big physical healthy specimen . . . obviously holding back and limiting all of his motions, intentionally. . . . His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. . . . Neurological examination is entirely normal to detailed sensory examination with pinwheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere.” The orthopedist’s summarization, impression, and prognosis are in the margin.
The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant’s attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient’s constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled. He recommended against any further surgery.
The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey’s report to the agency on August 30, 1966, concluded with the following diagnosis:
“Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships.
“I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc.”
The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant’s attending physician, were considered, as were those of the other examining physicians. The claim was again denied.
Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson’s notes referred to “some chronic or past disturbance of function in the nerve supply” to the left and right anterior tibialis muscles and right extensor digitorium brevis muscles that was “strongly suggestive of lack of maximal effort” and was “the kind of finding that is typically associated with a functional or psychogenic component to weakness.” There was no evidence of “any active process effecting [sic] the nerves at present.” Dr. Langston advised the agency that Dr. Mattson’s finding of “very poor effort” verified what Dr. Langston had found on the earlier physical examination.
The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer.
The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant’s counsel and admitted.
At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent “medical adviser,” that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant’s attorney. He stated that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin.
The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, “There is objective medical evidence of impairment which the heavy preponderance of the evidence indicates to be of mild severity. . . . Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof.” He specifically found that the claimant “is suffering from a low back syndrome of musculo-liga-mentous origin, and of mild severity”; that while he “has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity”; that “[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined” in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner’s decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits.
It is to be noted at this point that § 205 (d) of the Act, 42 U. S. C. § 405 (d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary’s regulations, authorized by § 205 (a), 42 U. S. C. § 405 (a), provide that a claimant may request the issuance of subpoenas, 20 CFR § 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings.
The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, 1967, in Perales’ favor against an insurance company for workmen’s compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, “I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole.” The Appeals Council ruled that the decision of the hearing examiner was correct.
Upon this adverse ruling the claimant instituted the present action for review pursuant to § 205 (g). Each side moved for summary judgment on the administrative transcript. The District Court stated that it was reluctant to accept as substantial evidence the opinions of medical experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. Perales v. Secretary, 288 F. Supp. 313 (WD Tex. 1968). On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt’s testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. Cohen v. Perales, 412 F. 2d 44 (1969).
On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner’s decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Cohen v. Perales, 416 F. 2d 1250 (1969). Certiorari was granted in order to review and resolve this important procedural due process issue. 397 U. S. 1035 (1970).
II
We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient’s unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant’s and his personal physician’s earnest pleas that significant and disabling residuals from the mishap of September 1966 are indeed present.
The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be “substantial evidence” when it stands alone and is opposed by live medical evidence and the client’s own contrary personal testimony? The courts below have held that it may not.
III
The Social Security Act has been with us since 1935. Act of August 14, 1936, 49 Stat. 620. It affects nearly all of us. The system’s administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government’s brief here accurately pronounces, “Such a system must be fair — and it must work.”
Congress has provided that the Secretary
“shall have full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.” § 205 (a), 42 U. S. C. §405 (a).
Section 205 (b) directs the Secretary to make findings and decisions; on request to give reasonable notice and opportunity for a hearing; and in the course of any hearing to receive evidence. It then provides:
“Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure.”
In carrying out these statutory duties the Secretary has adopted regulations that state, among other things:
“The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. . . . The . . . procedure at the hearing generally . . . shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing.” 20 CFR § 404.927.
From this it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner’s discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair.
IV
With this background and this atmosphere in mind, we turn to the statutory standard of “substantial evidence” prescribed by § 205 (g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, § 10 (e), in its original form, provided that the NLRB’s findings of fact “if supported by evidence, shall be conclusive.” 49 Stat. 454. The Court said this meant “supported by substantial evidence” and that this was ’
“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938).
The Court has adhered to that definition in varying statutory situations. See NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939); Universal Camera Corp. v. NLRB, 340 U. S. 474, 477-487 (1951) ; Consolo v. Federal Maritime Comm’n, 383 U. S. 607, 619-620 (1966).
V
We may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving “the differing rules of fair play, which through the years, have become associated with differing types of proceedings,” Hannah v. Larche, 363 U. S. 420, 442 (1960); that “the 'right’ to Social Security benefits is in one sense 'earned,’ ” Flemming v. Nestor, 363 U. S. 603, 610 (1960); and that the
“extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss’.... Accordingly . . . 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ ” Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970).
The question, then, is as to what procedural due process requires with respect to examining physicians’ reports in a social security disability claim hearing.
We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.
We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value:
1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant. A majority (Drs. Langston, Bailey, and Mattson) were called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses.
2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly.
3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his pre-operative observations and diagnosis, his findings at surgery, his post-operative diagnosis, and his post-operative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales’ complaints, the physical examination and neu-rologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same post-operatively, and described the orthopedic tests and neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did the post-operative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient’s complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination.
These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales’ claim is not in itself bias or an indication of nonprobative character.
4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth.
5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer’s field of specialized training.
6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR § 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental hearing could be requested. In fact, in this very case there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant’s part supports the Court of Appeals’ view, 412 F. 2d, at 50-51, that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.
7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker’s well-known ruling in the war-risk insurance case of Long v. United States, 59 F. 2d 602, 603-604 (CA4 1932),. which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in White v. Zutell, 263 P. 2d 613, 615 (1959), and in so doing, relied on the Business Records Act, 28 U. S. C. § 1732.
8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice, uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt. In these cases admissibility was not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases.
9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as “[t]he sheer magnitude of that administrative burden,” and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony.” Page v. Celebrezze, 311 F. 2d 757, 760 (CA5 1963). With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply.
VI
1. Perales relies heavily on the Court’s holding and statements in Goldberg v, Kelly, supra, particularly the comment that due process requires notice “and an effective opportunity to defend by confronting any adverse witnesses . . . .” 397 U. S., at 267-268. Kelly, however, had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, “where credibility and veracity are at issue, as they must be in many termination proceedings.” 397 U. S., at 269.
The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians’ reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors’ credibility or veracity. Kelly affords little comfort to the claimant.
2. Perales also, as the Court of Appeals stated, 412 F. 2d, at 53, 416 F. 2d, at 1251, would describe the medical reports in question as “mere uncorroborated hearsay” and would relate this to Mr. Chief Justice Hughes’ sentence in Consolidated Edison Co. v. NLRB, 305 U. S., at 230: “Mere uncorroborated hearsay or rumor does not constitute substantial evidence.”
Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material “without a basis in evidence having rational probative force.” This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.
3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical adviser. 288 F. Supp., at 314, 412 F. 2d, at 53-54. See also Mefford v. Gardner, 383 F. 2d 748, 759-761 (CA6 1967). Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing “reprehensible” in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral adviser. This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant’s condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See Doe v. Department of Transportation, 412 F. 2d 674, 678-680 (CA8 1969). We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing.
4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U. S. C. § 556 (d) (1964 ed., Supp. V). The claimant goes on to assert that in any event the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and “to make the Government’s case as strong as possible”; that naturally he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States, 348 U. S. 11, 14 (1954), and In re Murchison, 349 U. S. 133, 136 (1955); and that an “independent hearing examiner such as in the” Longshoremen’s and Harbor Workers’ Compensation Act should be provided.
We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General’s Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155. The cited § 556 (d) provides that any documentary evidence “may be received” subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a “party is entitled to present his case or defense by oral or documentary evidence . . . and to conduct such cross-examination as may be required for a full and true disclosure of the facts” and in “determining claims for money or benefits ... an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.”
These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act’s §§ 205 (a) and (b) “to establish procedures,” and “to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits,” and to receive evidence “even though inadmissible under rules of evidence applicable to court procedure.” Hearsay, under either Act, is thus admissible up to the point of relevancy.
The matter comes down to the question of the procedure’s integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants’ reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed “cross-examination as may be required for a full and true disclosure of the facts.” That is the standard. It is clear and workable and does not fall short of procedural due process.
Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts. The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits, M. Rock, An Evaluation of the SSA Appeals Process, Report No. 7, U. S. Department of HEW, p. 9 (1970), attests to the fairness of the system and refutes the implication of impropriety.
We therefore reverse and remand for further proceedings. We intimate no view as to the merits. It is for the District Court now to determine whether the Secretary’s findings, in the light of all material proffered and admissible, are supported by “substantial evidence” within the command of §205 (g).
It is so ordered.
Not pertinent here are the durational aspects of disability-specified in the statute’s definition.
“Midline incision is made in upper border of the spine of L4 downward in the midline to the upper sacrum. Dissection is carried down and in the subperiosteal space exposing the interspaces at L4-5 and L5 SI. At each interspace, partial laminectomy is carried out on
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_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Larry Wayne SAMPLES, Defendant-Appellant.
No. 89-1134
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 28, 1990.
Rehearing Denied April 25, 1990.
Larry Wayne Samples, Texarkana, Tex., pro se.
Delonia A. Watson, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.
Before CLARK, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.
PER CURIAM:
I.
A federal grand jury returned a one-count indictment against appellant Larry Wayne Samples charging him with the interstate transport of a stolen aircraft in violation of 18 U.S.C. § 2312. Samples filed a motion acknowledging his desire to plead guilty pursuant to Rule 20 of the Federal Rules of Criminal Procedure. The district court permitted Samples’ retained counsel to withdraw from the case, and appointed new counsel. Samples pled guilty and was sentenced to four years in prison. He did not appeal the conviction.
Samples filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He contended that his guilty plea was entered involuntarily because of threats to his life and to the safety of his family. He also claimed that his appointed counsel was ineffective. The district court denied his motion. Samples appealed the denial' to this court, which ordered that Samples be given an evidentiary hearing. A hearing was held before a magistrate who recommended that Samples’ motion be denied and his action dismissed. The district court rejected Samples’ objections and adopted the magistrate’s findings. Samples filed the present appeal.
II.
A. The Speedy Trial Act
Samples argues that the trial court erred in denying his request for a speedy hearing. He claims that the Speedy Trial Act, 18 U.S.C. § 3161 (1985), applies to those seeking post-conviction relief, citing Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Section 3161(c)(1) is applicable to the trial of any defendant who is charged with an offense and who pleads not guilty. There is no statutory or constitutional right to the disposition of a § 2255 motion within a specific time. 28 U.S.C. § 1657 requires that courts expedite such actions. This requirement is relative, not specific. No showing was made that the action was delayed beyond the requirements of the court’s docket. Samples’ argument lacks merit.
B. The Magistrate’s Authority
Samples contends that the trial court erred in allowing the magistrate to conduct the evidentiary hearing. We disagree. The Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1)(B) (Supp.1989), explicitly provides:
a judge may also designate a magistrate to conduct hearings, including evidentia-897 F.2d — 7 ry hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
C.Subpoenas
Samples’ third argument is that the district court erred in restricting his right to subpoena witnesses at the evidentiary hearing. Samples requested subpoenas at government expense for ten named individuals. He indicated in his request that the first seven individuals would testify about the threats directed toward Samples which he claimed led to his guilty plea. He stated that the eighth and ninth witnesses had knowledge of physical evidence of these threats (the broken windshield of his truck). The last witness, Samples’ former attorney, was requested to testify about prior proceedings.
The magistrate concluded as to the first seven individuals: “[fjrom the representations in the motion it appears that the testimony which these persons are able to give is cumulative.” The magistrate permitted Samples to choose three of the seven, and they were subpoenaed. The magistrate also subpoenaed one of the two witnesses who were to testify about the condition of the vehicle because the testimony of both was also expected to be cumulative. The magistrate did not permit a subpoena to issue as to Samples’ former attorney because there was no indication that this attorney, who was appointed to represent Samples in a subsequently filed case, could testify about Samples’ claims of ineffective assistance of counsel or the involuntary guilty plea. “This Court has generally given district courts wide discretion in determining whether subpoenas should issue under Rule 17(b).” United States v. Ramirez, 765 F.2d 438, 441 (5th Cir.1985), cert. denied, sub nom. Perpignond v. United States, 474 U.S. 1063, 106 S.Ct. 812, 88 L.Ed.2d 786 (1986). The court may exercise its discretion to deny subpoenas “if the Government demonstrates that the indigent’s averments are untrue, or if the requested testimony would be merely cumulative or irrelevant.” United States v. Webster, 750 F.2d 307, 329-30 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985) (citations omitted.)
In this case, Samples’ own motion demonstrated the duplicative nature of the proposed testimony. On appeal, Samples complains that a critical witness, Paula Wom-ack, was not subpoenaed, yet Samples did not exercise the opportunity he was given to choose her as one of his three witnesses from that group.
Samples failed to show how the testimony of his former attorney, John Bass, would be relevant. Samples did not “allege facts that, if true, demonstrate^] ‘the necessity of the requested witness’ testimony.’ ” Webster, 750 F.2d at 329 (quoting United States v. Hegwood, 562 F.2d 946, 952 (5th Cir.1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1274, 55 L.Ed.2d 787 (1978)). Bass was not involved in Samples’ case until after sentencing. He could not testify about the proceedings in question. The district court acted properly in limiting the number of subpoenas issued on Samples’ behalf.
D. Counsel
Samples argues that the magistrate erred when he found that Samples’ court-appointed attorney had provided “imminently sound” advice. First, he states that the attorney, Dudley P. Andrews, was primarily a civil attorney who should not have been appointed in a criminal case. Samples also contends that Andrews advised Samples that he would be charged with contempt of court if he withdrew his guilty plea.
The Strickland test applies to guilty plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). This test requires the petitioner to demonstrate not only that his lawyer’s conduct was deficient, but also that he was prejudiced by this deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The petitioner must show that his counsel’s actions “fell below an objective standard of reasonableness,” id. at 688, 104 S.Ct. at 2064, and that a reasonable probability exists that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A reviewing court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” id. at 690, 104 S.Ct. at 2066, and must strongly presume that counsel has exercised reasonable professional conduct. Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 827 (1987).
The evidence presented at the hearing does not show ineffective assistance of counsel. Samples testified at the hearing that he never told Andrews about any of the threats or violent incidences. Andrews also testified that Samples told him that he wanted to withdraw his guilty plea simply because he didn’t want to go to prison. He also stated that he did not recall ever seeing Samples appear in a beaten or injured state. Therefore, Samples did not provide Andrews with any “fair and just reason” for the withdrawal of Samples’ guilty plea under Fed.R.Crim.P. 32(d). Samples’ ineffectiveness claim does not meet the first prong of the Strickland test. Samples also fails to satisfy the second prong of the test because testimony was presented at the evidentiary hearing that Samples had been told by Assistant U.S. Attorney Jo'seph Revesz that he could plead not guilty. Thus, there is no indication of prejudice to Samples. The determination that Samples had no ineffective assistance of counsel claim is supported by the testimony presented at the evidentiary hearing.
E. Cross-examination
Samples contends that the magistrate erred by restricting the cross-examination of Melissa Murphy, the appellant’s ex-wife. He claims that the magistrate treated Murphy with “kid gloves,” and that this prevented the disclosure of impeaching information. He claims that she has a drug habit and that she was intimately involved with federal marshals.
Murphy, however, was questioned about her involvement with federal marshals. She denied ever dating a marshal. The magistrate did not permit questions regarding Murphy’s alleged drug-related arrests. This was appropriate under Fed. R.Evid. 608(a), which provides:
“[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”
The magistrate permitted questions about Murphy’s drug use on particular instances, such as on the dates that she appeared for the July 1985 arraignment and the August 1985 sentencing. As the magistrate pointed out, general questions relating to drug use would be irrelevant.
F. The Hearing
Samples contends that the hearing was “artificially conducted and predetermined.” He further accuses the trial court of “throwing handicap weights on the government’s side of the balancing scale.” He specifically contends that the magistrate erred in allowing assistant U.S. attorney Joseph Revesz to remain in the courtroom despite Samples’ invocation of Federal Rule of Evidence 615. He also claims: “the trial court continually interrupted the hearing while questions were being posed, or answers were being given.” He claims that this was done to cause a change in the direction of the testimony or to prevent the clear presentation of the facts.
The trial court’s decision of who will be sequestered can be reversed only upon a clear showing of abuse of discretion. United States v. Alvarado, 647 F.2d 537, 540 (5th Cir.1981). The determination that Revesz fell within the second exemption to Rule 615, which applies to “an officer or employee of a party which is not a natural person designated as its representative by its attorney,” was within the discretion of the magistrate. See United States v. Nix, 601 F.2d 214, 215 (5th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 196 (1979); Portomene v. United States, 221 F.2d 582 (5th Cir.1955).
Samples’ accusation that the hearing was biased is without merit. Samples was given a full opportunity to present his issues. The transcript of the proceeding covers 383 pages. The trier of fact in a federal forum is not confined to a silent or passive role. It is common practice for a judge or magistrate to ask questions of a witness for clarification. As the government points out in its brief, this Court has expressly stated that the trial judge “may comment on the evidence, may question witnesses and elicit facts not yet adduced or clarify those previously presented.” Moore v. United States, 598 F.2d 439, 442 (5th Cir.1979).
Samples argues that his court-appointed attorney at the evidentiary hearing, Robert Hyder, provided ineffective assistance of counsel by failing to interview Samples and his witnesses prior to the evidentiary hearing. This claim does not pass Strickland muster. The transcript of the hearing reflects that Hider had adequate knowledge of Samples’ case. Hider’s performance was not deficient, as he made pertinent objections, thoroughly examined the witnesses, and displayed competence in developing facts within the limits of the Federal Rules of Evidence. Moreover, Samples’ assertion that attorney Hider was unprepared finds no support in the transcript of the evidentiary hearing. Hider’s questions reflected a clear understanding of what Samples was trying to establish. This claim is frivolous.
G. Findings
Samples maintains that the trial court erred in refusing to credit the unimpeached testimony of his witnesses. Samples complains that he presented witnesses who testified that they had seen Samples being beaten or had seen Samples’ damaged vehicle. He also argues that his son testified that he had heard attorney Dudley Andrews tell Samples that he could not revoke the Rule 20 motion acknowledging his desire to plead guilty.
The trier of fact need not credit any witness’ testimony, even if unimpeached. “An appellate court is in no position to weigh conflicting evidence and inferences or to determine the credibility of witnesses; that function is within the province of the finder of fact.” Strauch v. Gates Rubber Co., 879 F.2d 1282, 1285 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 841, 107 L.Ed.2d 836 (1990) (citing Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc).
Melissa Murphy provided conflicting and damaging testimony at the hearing. She testified that Samples requested that she testify that she had been threatened and that Samples had been threatened and beaten. She further testified that Samples had never exhibited any signs of a beating. She stated that the windshield of the truck was broken at the time she and Samples had purchased it.
The magistrate apparently credited her testimony instead of that provided by other witnesses, several of whom were immediate family members of Samples. His choice between conflicting testimony is not subject to reweighing on this appeal.
III.
The judgment of the district court is AFFIRMED.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_treat
|
E
|
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.
Mortimer W. COAKLEY, Plaintiff, Appellant, v. POSTMASTER OF BOSTON, MASSACHUSETTS et al., Defendants, Appellees.
No. 6758.
United States Court of Appeals First Circuit.
March 16, 1967.
David D. Dretler, Boston, Mass., for appellant.
Gordon A. Martin, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Plaintiff appeals from the district court’s refusal to set aside an order of the defendant postmaster discharging him from his civil service position in the Boston Post Office. While holding this position plaintiff was also employed as a full-time fireman (boiler tender) by the Boston Housing Authority. The postmaster claims that Postal Regulation 712.811 prohibits plaintiff from working full-time for the Housing Authority while regularly employed by the Post Office and ordered him to give up one job or the other. He refused to relinquish either job and the postmaster discharged him.
Regulation 712.811 states “Regular (per annum) postal employees may hold state or local government part-time positions.” The postmaster asserts that this regulation by implication precludes regular postal employees from holding full-time positions with a state or local government. Plaintiff contends that this regulation does not apply to him because his job with the Boston Housing Authority is not a “state or local office” within the meaning of this regulation and that in any event the regulation itself is unreasonable.
We agree with the Postmaster that Regulation 712.811 precludes by implication regular postal employees from holding state or local government full-time positions. Any other interpretation would not make sense. We also agree that even though the title of the regulation uses the word “office” its applicability is not limited to top echelon officials. This regulation is much broader in scope and is intended to cover outside employment in general. Nor can we accept plaintiff’s argument that the Authority is not a state or local agency within the purview of the regulation. Cf. E. W. Wiggins Airways, Inc. v. Massachusetts Port Auth., 362 F.2d 52, 55 (1st Cir., cert, denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). That case held that a state Authority with similar statutory powers and duties was a public agency.
We now turn to the question of whether this regulation is reasonable. Rules and regulations made by government agencies in order to be valid must have a rational basis. Pan American Petroleum Corp. v. Federal Power Comm., 352 F.2d 241, 244 (10th Cir. 1965); N.L.R.B. v. Esquire, Inc., 222 F.2d 253, 256 (7th Cir. 1955). The difficulty in this case is that neither the record nor the regulation itself reveals its rationale. For this reason, we remanded the case to the district court for the limited purpose of receiving evidence as to its rationale. Regrettably, this hearing left the answer as much in the dark as it was before.
Clearly, under this regulation plaintiff, while holding his post office position, could work as a full-time boiler tender for a private employer but could only work as a part-time boiler tender if his employer were a state or municipal agency. We have not been given nor have we discovered any good reason for such a distinction. It can hardly be said that this distinction is based on job interference in view of the fact that there are other regulations under which the postmaster may forbid a postal employee from holding any outside position, public or private, full-time or part-time, which tends to interfere with his postal employment. Moreover, from a practical point of view there appears to be no intrinsic difference between public and private employment. Both demand a high degree of loyalty and require that the employee render efficient service, one no less than the other. Nor do we think that considerations based on sovereignty or comity between nation and state or the likelihood of conflicts of interest between the two, especially in times of emergency, enter into or constitute the rationale of this rule. For example, a full-time postal employee, working part-time for a state or municipal agency would be just as subject to conflicting demands on his time in case of an emergency as would an employee holding two full-time positions.
We are not persuaded by the government’s argument that the long history of prohibitions against dual office holding, both federal and state, and the fact that these prohibitions have been widely adopted and accepted in and of itself supports the reasonableness of this particular regulation. This is a non sequitur. We are not considering the reasonableness of a regulation forbidding all “moonlighting.” Cf. Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966). The government further points out that until recently regular civil service employees were precluded from all outside public employment and the fact that this regulation does not go the full distance in relaxing this prohibition does not make it unreasonable. This argument falls short in that it sheds no light whatever on the rationale behind the distinction which the rule makes between apparently identical public and private employment.
In the absence of any good reason for such a distinction, it would seem that it can only be based on a per se objection to regular postal employees holding a second full-time public position as distinquished from a second full-time private one. In other words, the only reason for this distinction is that it is so because it is so. From this we can only conclude that the regulation in question is unreasonable on its face.
Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.
. Coakley v. United States Civil Service Commissioners, 252 F.Supp. 639 (D.Mass. 1966).
. There is no dispute that plaintiff, a full-time career mail handler, was a regular (per annum) postal employee at the time of his discharge.
. He also contends that this regulation violates the Fourteenth Amendment in that it discriminates against a group but we find no merit in this contention.
. For the most part, the defendant merely produced certain documents tracing the history and development of rules with reference to outside employment, none of which reveal the reasoning behind the distinction between full-time public and full-time private employment as made in the rule in question. Additionally, the defendants listed several state cases dealing with the various state prohibitions against dual office holding.
. Sections 712.82 and 744.451.
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_8_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
LOGAN v. HAYNES et al.
(Circuit Court of Appeals, Eighth Circuit.
February 8, 1926.)
No. 6993.
Bankruptcy <@=>288(1) — Referee has jurisdiction to determine in summary proceeding claim to property in possession of bankruptcy court, and plenary action by trustee is not necessary.
Where property on which claimant has chattel mortgage is in possession of bankruptcy court or its officer, referee has jurisdiction to determine claim in summary proceeding, and plenary action by trustee is not necessary.
Appeal from the District Court of the United States for the District of Kansas; John C.. Pollock, Judge.
In the matter of bankruptcy of Frank Haynes. From an order sustaining the order of the referee • allowing the claim of Martha Haynes, J. G. Logan, trustee, appeals.
Affirmed.
Eugene S. Quinton and James E. Larimer, both of Topeka, Kan., for appellant.
R. M. Lee, of Topeka, Kan., for appellees.
Before KENYON and VAN VALKENBURGH, Circuit Judges, and YOUMANS, District Judge.
YOUMANS, District Judge.
This is an appeal from an order in bankruptcy of the District Court of Kansas, sustaining an order of the referee in allowing a claim of Martha Haynes against the bankrupt, Frank Haynes, and overruling objections of the appellant as trustee of said bankrupt estate to said claim.
Eleven errors are assigned by appellant. In his brief, counsel for appellant says:
“All of the specifications of error will be presented as directed to one question of law; the jurisdiction of the referee to determine an adverse claim in a summary proceeding.”
Therefore the only question in the ease is the jurisdiction of the referee to make the order. The sufficiency of the evidence is not questioned.
The claim of Martha Haynes was. a note of the bankrupt, secured by chattel mortgage executed by him on his property. The contention of appellant is that the sole jurisdiction of the referee was to determine whether Martha Haynes, under her chattel mortgage, was an adverse claimant, and, when so ascertained, to make a finding to that effect, and to direct the validity of the mortgage as a lien upon the property therein described to be determined in a plenary suit brought by the trustee. In support of that contention counsel for appellant relies on the case of Babbitt v. Dutcher, 30 S. Ct. 372, 216 U. S. 102, 54 L. Ed. 402,17 Ann. Cas. 969.
In that contention the question of the possession of the claimed property at the time is overlooked. The jurisdiction of the referee in such a case depends upon possession of the property claimed.
In the case of Weidhorn v. Levy, 40 S. Ct. 534, 536, 253 U. S. 268, 271, 64 L. Ed. 898, the Supreme Court said:
“There may be controversies arising in the course of bankruptcy proceedings that are so far connected with those proceedings as to be in effect a part of them and capable of summary disposition by the referee under the general order of reference, although because of their nature or because involving a distinct and separable issue they may be reviewable, under the section cited by appeal rather than by petition to revise. Hewit v. Berlin Machine Works [24 S. Ct. 690] 194 U. S. 296, 300 [48 L. Ed. 986]; Knapp v. Milwaukee Trust Co. [30 S. Ct. 412] 216 U. S. 545, 553 [54 L. Ed. 610]. Thus, if the property were in the custody of the bankruptcy court or its officer, any controversy raised by an adverse claimant setting up a title to or lien upon it might be determined on summary proceedings in the bankruptcy court, and would fall within the jurisdiction of the referee. White v. Schloerb [20 S. Ct. 1007] 178 U. S. 542, 546 [44 L. Ed. 1183]; Mueller v. Nugent [22 S. Ct. 269] 184 U. S. 1, 13 [46 L. Ed. 405]. But in the present instance the controversy related to property not in the possession or control of the court or of the bankrupt or any one representing him at the time of petition filed, and not in the court’s custody at the time of'the controversy, but in the actual possession of the bankrupt’s brother under an adverse claim of ownership based upon conveyances made more than four months before the institution of the proceedings in bankruptcy. In order to set aside these conveyances and subject the property to the administration of the court of bankruptcy a plenary suit was necessary. Babbitt v. Dutcher [30 S. Ct. 372] 216 U. S. 102, 113 [54 L. Ed. 402, 17 Ann. Cas. 969].”
It thus appears that the jurisdiction of the referee depends upon the possession of the property. In this instance the property was in the custody of the bankruptcy court. It was included in the bankrupt’s schedules. The possession was not being held adversely. The claimant was making her claim in the bankruptcy proceedings. She subfnitted herself and her claim to the jurisdiction of the referee. The referee had jurisdiction to pass on the question as to whether the mortgage constituted a voidable preference. He held that it did not, and he overruled the objections of the trustee.
The order of the District Court,is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Milton R. DUSKY, Appellant, v. UNITED STATES of America, Appellee.
No. 16194.
United States Court of Appeals Eighth Circuit.
Nov. 6, 1959.
James W. Benjamin, Kansas City, Mo., for appellant.
O. J. Taylor, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee.
Before SANBORN, WOODROUGH and MATTHES, Circuit Judges.
SANBORN, Circuit Judge.
This is an appeal in forma pauperis from a judgment and sentence of imprisonment based upon the verdict of a jury finding the defendant, Milton R. Dusky, guilty under an indictment returned September 10, 1958, charging him with having, on or about August 19, 1958, in violation of 18 U.S.C. § 1201, unlawfully transported in interstate commerce from Johnson County, Kansas, to Ruskin Heights, Missouri, a certain girl who had been unlawfully decoyed, kidnapped and carried away.
Broadly stated, the main contentions of the defendant are, in substance, that the court committed reversible error (1) in finding him mentally competent to stand trial; (2) in denying his motion, made at the close of the evidence at the trial, for a directed verdict of acquittal, and in submitting the issue of his sanity to the jury; and (3) in instructing the jury on that issue. It is asserted also that certain happenings and rulings at the trial rendered it unfair and entitle the defendant to a reversal of his conviction.
The defendant was unable to employ counsel, and the District Court on September 11, 1958, appointed as his attorney Mr. James W. Benjamin, of the Kansas City, Missouri, Bar, who, without recompense or hope of reward, has, on his own time and at his own expense, admirably represented the defendant in the trial court and in this Court.
Upon his arraignment on September 12, 1958, the defendant entered a plea of not guilty. At the suggestion of his counsel that there was a question of the defendant’s mental competency to stand trial and that there might be a question whether he could be found mentally responsible for the crime charged against him, the court, pursuant to 18 U.S.C. § 4244, ordered the defendant committed to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for examination as to his mental competency to stand trial, and, in addition, “to determine, insofar as possible, whether, on August 19, 1958, the defendant was possessed of sufficient mental and moral faculties as to be capable of distinguishing between right and wrong and to be conscious of the nature of the acts which he was then doing or committing, * *
The defendant remained at the Medical Center for examination, observation and treatment for a total period of four months.
At a hearing held pursuant to 18 U.S. C. § 4244, on January 21, 1959, to determine whether the defendant was competent to stand trial, the court had before it a detailed report of a Neuropsychiatric Examination of the defendant. This report was dated October 30, 1958, and was signed by Doctor L. Moreau, Staff Psychiatrist at the Medical Center. On the last page of the report appears the following:
“He is oriented as to time, place, and person. He denies complete memory of the events of the day of the alleged offense.
“He gives the impression clinically of being of approximately average intelligence. His responses to the abstractions tests indicate approximately normal capacity for abstract thinking.
“Psychological testing done at this institution on September 17, 22, and 24, 1958, indicate ‘a personality which has decompensated to a psychotic degree of severity and thus implying the personality loss of capacity to master conflict situations and to meet reality demands.’ Prominent among the test findings were evidences of fear, inadequacy, anxiety, impulsiveness, poor reality contact, lack of ego strength, auditory and visual hallucinations, depression, nervous tension, morbid preoccupation with hostility, suicide, murder, sexual indulgence succumbing to a state of insanity. It was noted that the patient stated that taking the psychological tests caused him to become nervous and that he wouldn’t have been able to go through with the testing procedures had he not been taking Sparine.
“VI. Summary: This patient, charged with kidnapping, has no previous criminal record. In November, 1949, he was investigated for robbery and was released the same day. He was reared in an atmosphere of severely traumatic circumstances because of the discord between his parents and has always suffered from feelings of inadequacy. He has been grossly maladjusted since childhood. He was discharged from the Navy because of a psychoneurosis and has been a patient in Veterans Administration hospitals on two occasions since 1956. He has also received psychiatric care through the psychiatric receiving center in Kansas City, Missouri. Since admission to the Medical Center he has shown marked emotional turmoil, insomnia, tension, feelings of self-devaluation, ambivalent feelings, and impaired judgment and insight. He complains of having feelings of being followed and visual hallucinations. Almost since admission he has required the use of tranquilizing medications.
“VII. Diagnosis: 000-x26 Schizophrenic reaction, chronic undifferentiated type, as manifested by visual hallucinations, tension, insomnia, emotional turmoil, ambivalence, morbid preoccupations, depression, feelings of inadequacy and unworthiness, and a long history of alcoholism and inadequacy.”
Attached to this report was a report of the Psychiatric Staff of the Medical Center, dated October 30, 1958, signed by Doctor Joseph C. Sturgell, Chief of the Neuropsychiatric Service, reading as follows:
“The findings of psychiatric examination were presented by Dr. Louis Moreau. Other records were reviewed and the patient was interviewed by the members of the Psychiatric Staff.
“It is the opinion of the staff, following interview of the patient, that he had improved in recent weeks but his condition is still such that he is unable to understand the nature of the proceedings with reference to the charges against him and is unable to properly assist counsel in his defense. The patient is receiving tranquilizing medications and would probably deteriorate quickly if treatment was stopped at this time.
“It is recommended that he be left at the hospital an additional sixty (60) days so that recent improvement can be tested following discontinuation of tranquilizing drugs. It is probable that he would then be considered competent.
“In view of the long history of chronic anxiety, depressions, alcoholism, insomnia, phobias, and marital discord, it is apparent that this man has had episodes of mental illness with intermittent periods of improvement. His condition at the actual time of the offense is impossible to evaluate accurately since the only information available is that provided by the patient. The staff, therefore, is unable to determine whether or not on August 19, 1958 the defendant was possessed of sufficient mental and moral facilities as to be able to distinguish between right and wrong.”
The court also had before it a report of the Neuropsychiatric Staff of the Medical Center, dated January 20, 1959, as to an examination of the defendant on January 8, 1959, signed by Doctor Stur-gell for the Psychiatric Staff. It reads as follows:
“This 33-year-old white male was admitted to the hospital 9-14-58 for examination in accordance with Section 4244, Title 18, U.S.C.
“The initial examination of this patient indicated that this man has had episodes of mental illness probably of several years duration with remissions and exacerbations. He appeared to be in one of his periods of relapse at the time of admission with overt symptoms being apparent. However, following several weeks of medication he improved so that at the time of his initial appear-anee for examination by the NP Staff 10-30-58 it was thought that he was improving and that the maximum improvement had not occurred. For this reason the court was asked to extend his examination for a period of 60 days until maximum improvement had occurred.
“Following the staffing on 10-30-58 the patient’s mental condition remained fairly stable for about 6 weeks. Then he began to become agitated, anxious, and hostile to people around him. He expressed discouragement with his situation and began to feel that he was being framed in the present offense. He experienced hallucinations, delusions, and ideas of reference.
“When examined by the staff, the patient again presented evidence of symptoms mentioned above. The staff is of the opinion that this man is mentally ill with a diagnosis of schizophrenia. Because of this illness, he is unable to properly understand the proceedings against him and unable to adequately assist counsel in his defense.”
The only witness testifying at the hearing was Doctor Sturgell, whose testimony was in substantial conformity with the reports in evidence. He explained the statement in Doctor Moreau’s report that the defendant was oriented as to time, place and person, as follows:
“This means that he is able to know the day of the week, the hour, the place in which he finds himself geographically, and the circumstances of his present situation. He knows he is in a court room; he knows the day of the week and the day of the year, and he knows that you are his attorney and Judge Smith is the judge. This is the orientation to person. He knows it all.”
Doctor Sturgell also expressed the opinion that the defendant understood what he was charged with, knew that if there was a trial it would be before a judge and jury, knew that if found guilty he could be punished, and knew who his attorney was and that it was his duty to protect the defendant’s rights. It appeared from Doctor Sturgell’s testimony also that the defendant had been able to furnish, with substantial accuracy, information as to his past history and as to at least some of the events leading up to the occurrence upon which the indictment was based. The Doctor expressed the opinion that the defendant would be unable properly to assist his attorney in his defense “because I do not think that he can properly interpret the meaning of the things that have happened. I don’t think he can convey full knowledge of his actual circumstances * * * due to an inability to interpret reality from unreality, * * * to suspicions of what is going on, * * * to confused thinking, which is part of his mental illness.” The Doctor also testified that the defendant “would be able to tell his attorney of the events, as he recalls them, as interpreted by the thinking which is directly connected with his mental illness,” which could result in a false factual statement to his attorney.
Doctor Sturgell stated that the defendant, who — the report of Neuropsychi-atric Examination dated October 30, 1958, showed — had said he drank two pints of vodka during the night before the acts of August 19, 1958, were committed, and continued to drink heavily the following day, could have been drunk, and so unable to remember the crucial events of that day. There was other testimony by the Doctor in support of his views that the mental illness of the defendant would or could disable him from adequately assisting his counsel in his defense, but enough has been said to indicate the views of the Psychiatric Staff of the Medical Center as to the mental competency of the defendant to stand trial.
The District Judge, at the conclusion of the hearing, decided that the defendant had sufficient mental competency to stand trial, saying:
“That is not in any way saying, gentlemen, that he is responsible, as not being mentally incompetent, for the offense for which he is being tried. It is simply in the narrow test that is used in the hearing under Section 4244 of Title 18. Since he is oriented as to time and place and person, since he, in my opinion based on the limited evidence that has been presented so far, is able to assist counsel in his own defense, then it will be concluded that he is mentally competent to stand trial and will be retained here until the case is set for trial.”
Defendant’s counsel then made the following statement:
“[Mr. Benjamin:] Your Honor, may the record show my objection and exception to the Court’s ruling in view of the undisputed testimony of the Government’s witness, the psychiatrist, the Government psychiatrist, that he [the defendant] is not properly able to assist in his defense and I, as his attorney, have reached that same conclusion, although I do not feel, as his attorney, that I should take the witness stand and be sworn and offer evidence in that regard. I make this statement as a lawyer to the Court and I believe that the man is not properly able to assist his counsel in his defense and should not be tried at this time.”
The case was tried, commencing March 2, 1959. Before the selection of the jury, the Court made the following statement to the jury panel:
“Ladies and gentlemen of the panel: This is a criminal case in which the United States is prosecuting, under an indictment returned by the Grand Jury, Milton Richard Dusky, the gentleman in the brown suit seated at the counsel table to my right, under a charge of kidnapping under circumstances in which it is alleged that the defendant, Mr. Dusky, in company with two boys or young men, forcibly transported a young woman across the state line and ravished her under circumstances that it is alleged constituted a violation of the Federal Kidnapping Statute. The incident is alleged to have occurred on August 19, 1958, and it is charged that this young woman was transported in interstate commerce from Johnson County, Kansas, to Ruskin Heights, Missouri. It was further charged that the young lady, one Joan Rae McQuerry, was not liberated unharmed, all in violation of Section 1201 of Title 18 of the United States Code.”
No exception was taken to the statement at the time, but, after the selection of the jury, counsel for defendant excepted to it on the ground that it created the impression that the defendant had participated in the ravishment of the girl, which was not what he was charged with in the indictment. Counsel asserted that, under the indictment, any evidence of the forcible taking of the girl from Missouri to Kansas would be inadmissible, and asked that the evidence be confined to her alleged forcible kidnapping and transportation from Kansas to Missouri. The motion was overruled.
The Government’s evidence with respect to the events which gave rise to the indictment was uncontradicted. The victim of the kidnapping was a high school girl 15 years of age at the time. She lived with her parents in Ruskin Heights, a suburb of Kansas City, Missouri. On August 19, 1958, about noon, while she was walking to a drug store in Ruskin Heights to have lunch with a friend, the defendant with two boys— Leonard Dischart, 14 years of age, and Richard Nixon, 16 years of age — drove up in the defendant’s automobile and gave her a ride to the drug store. She was an acquaintance of Nixon. After leaving her, they went down to the “Wheel-Inn Drive-In,” in Ruskin Heights, where they had a discussion about taking the girl out for the purpose of having sexual intercourse with her. They were all drinking vodka. After that, they went back to the drug store, and there, or near there, decoyed her into the automobile under the pretext of taking her home and also to see some girl she knew. She was driven to a back road in Kansas, where she was forcibly undressed and raped by the two boys, and where the defendant attempted to rape her. After these happenings, the girl was permitted to put her clothing on, and was driven by the defendant, in his ear, accompanied by the boys, back to Ruskin Heights, Missouri. The car stopped at the “Wheel-Inn Drive-In,” where the girl, who was permitted to get out of the car for a drink of water, ran into the back room of the Drive-In and told a Mr. Delair, whom she knew, that she had been raped. Thereupon the defendant and the two boys drove away.
The defense at the trial was insanity. Under the evidence of the Government, no other defense would seem to have been available to the defendant. He and Dischart were arrested in the evening of August 20, 1958, under a warrant. Upon being advised at that time that the charge was kidnapping, the defendant said: “that is a pretty serious charge, isn’t it ?” Upon being told it referred to the “girl that you all picked up the other morning out in Ruskin Heights,” the defendant said: “That wasn’t a kidnapping. She got in the car voluntarily.” On the following morning the defendant gave to the agent of the Federal Bureau of Investigation who had participated in his arrest a written statement which conformed substantially with the facts as testified to by the girl and by Richard Nixon (who is serving time for his participation in the offense).
After proving that the girl named in the indictment had, on August 19, 1958, been transported from Kansas to Missouri by the defendant after she had been decoyed, abducted and kidnapped within the meaning of 18 U.S.C. § 1201, the Government rested.
Doctor Joseph C. Sturgell and Doctor John K. Dickinson, of the United States Medical Center, testified for the defendant. Their testimony did not differ substantially from the testimony of Doctor Sturgell given at the hearing on January 21, 1959, relating to the defendant’s mental capacity to stand trial, as determined from their study of him while at the Medical Center. Doctor Sturgell testified as to the defendant’s unfortunate history from his early childhood. He stated that the examination at the hospital gave a diagnosis of schizophrenia, and that he had no doubt the defendant was suffering from that disease. He said: “This [schizophrenia] is a condition called a psychosis, which is the severest form of mental illness, characterized by disturbances in the ability to think clearly. There is a disorder in thinking; there is a disorder in the area of feeling, the ability to express feeling in terms [omission] certain incidents; it is a disturbance within the individual to where he is unable to feel some of the experiences of joy and sadness which we feel. He may misinterpret them in his thinking and interpret them according to distorted ideas, such as delusions and hallucinations which are not realistic, and his behaviour is abnormal in terms of response to these ideas of thinking and feeling. So that in essence it is a disturbance in thinking, feeling and acting or behaviour.” The Doctor said that schizophrenia “is thought of as a long time developing illness and lasts for a long time,” and that the defendant’s previous mental and nervous disturbances fitted in with the diagnosis of schizophrenia. Asked whether in the case of schizophrenia there were times when the man will not know the difference between right and wrong, the Doctor said: “Certainly it very well may be. Most of the time I would say, when a man is so severely ill the diagnosis of schizophrenia is overtly present he would not know the difference between right and wrong by reason of delusions, disordered thinking, a misinterpretation of reality and the mental illness of such a severe degree that he is unable to reason logically.”
On cross-examination, Doctor Sturgell said that the basic reason people develop mental illness is a lack of tolerance to stress; and that the fact that the defendant was under indictment for a serious crime would be a stress that would affect his thinking and his symptoms, and he had been under indictment all of the time he was in the Medical Center. The Doctor stated the previous hospitalizations of the defendant had been voluntary, and that he had left the hospitals against medical advice. During the cross-examination of Doctor Sturgell, counsel agreed that a report relative to the defendant by the psychiatrist at the Veterans Administration Hospital at Topeka, Kansas, dated March 28, 1958, showed a diagnosis of “an anxiety reaction, chronic, severe, manifested by feelings of restlessness, fatigue, alcoholism, free floating anxiety and phobias”; and that a similar report about the defendant from a psychiatrist at the same hospital, dated July 26, 1957, showed: “Diagnosis: Anxiety reaction, chronic, moderate, feelings of restlessness, fatigue, alcoholism, somatizations [physical complaints referable to organs], free floating anxiety and phobias unchanged. Finding: The patient is competent.” The prognosis in the report of March, 1958, was “Poor”; and the prognosis in the July, 1957, report, “Guarded”. In a June, 1957, report the diagnosis was the same, the prognosis “fair”, and it was also stated that the patient was “competent”. Doctor Sturgell stated that psychological tests given to the defendant at the Medical Center showed him to be of average intelligence; that he had dreams of beating his wife, who had divorced him and had married his brother; that the defendant said he once had an impulse to kill her; that the tests showed him to be preoccupied in a morbid sense with suicide, hostility toward others, murder, and sexual indulgence; that his capacity for abstract thinking was about normal and he was oriented as to time, place and person. Doctor Sturgell said the defendant knew he was in a court room, knew that Mr. Benjamin was his attorney, and knew that the function of the jury was to determine his guilt or innocence of the crime of kidnapping. The Doctor stated that the fact that the defendant furnished an agent of the Federal Bureau of Investigation a true statement of the events of August 19, 1958, as shown by the evidence of other witnesses at the trial, would not indicate that he was not mentally ill; that he [the Doctor] could give no opinion as to the defendant’s mental condition on August 19, 1958, but believed he was suffering from schizophrenia as of that date; and that “A person can have normal intelligence and make reasonable answers as to where he is, what he is doing and information about an occurrence, and still be seriously mentally ill with schizophrenia, misinterpret and make behav-iour responses which are not normal as part of the pattern of the mental illness of schizophrenia.”
Doctor John K. Dickinson, a staff psychologist at the Medical Center, testified substantially as follows: That he attended the defendant while he was at the institution for examination and treatment; that he saw the defendant four out of the five working days each week; that the defendant had quite a few unreal fears; that he had an average I.Q.; that psychological tests indicated a severe mental illness centered around his unreal fears and prior troubles; that he has schizophrenia; that “there is a good probability that he was suffering from his mental disorder schizophrenia on that date [August 19, 1958]”; and that there is a reasonable probability that at that time he did not appreciate the nature of his acts and could not distinguish between right and wrong. On cross-examination, Doctor Dickinson stated that there is a possibility that the defendant could distinguish between right and wrong at the time of the offense, and a probability that at some time during the past year the defendant did appreciate the nature and quality of his acts and had the ability to distinguish between right and wrong; and that his disease fluctuates in its symptoms and severity.
There was evidence by F. W. Porter, on behalf of the defendant, that the defendant worked for Porter, an electrical contractor, from 1949 to 1956, as a stock man and truck driver, without missing much time; that the defendant talked of family troubles; that he had a nervous condition when he first came to work and when he quit in February, 1956; that he said he was too nervous and wanted to quit; that he also worked three or four days in December, 1957, for Porter as a truck driver, and then “didn’t show up”, notifying Porter that the “V. A. doctor” had advised him (the defendant) not to try to work, that he was too nervous.
The records of the Psychiatric Receiving Center, of Kansas City, Missouri, relative to the care and treatment of the defendant, were introduced in evidence on his behalf. They showed that he had been admitted to the Center for treatment from January 2 to January 4, 1956; again from March 14 to April 13, 1956; and again on December 31, 1956, when the diagnosis was: “Happy, dependent personality; potential suicide reaction depression; threats severe; family and social problem; pre-disposition severe; passive depressive personality, dependent type with alcoholic addiction.”
Charles W. Harris, Field Director for the American Red Cross, in the Veterans Administration Regional Office in Kansas City, Missouri, testified relative to the defendant’s applications to the Red Gross for monetary assistance, and help with family problems and hospitalization. Harris testified that he had received a letter from the defendant from the Medical Center, dated November 1, 1958, which contained this language: “I am writing to let you know that the doctors here at the Medical Center have found me incompetent. Will this affect my compensation rating? It appears to me it should be increased. Would you please write and advise me on this matter.”
The defendant testified in his own behalf. He told of his family life as a boy, of the quarrels between his parents, their divorce when he was 16 years old, and of being abandoned by them at that age. He told of getting a job and being married at 17, of joining the Navy at 18, of having feelings of anxiety and being terrified and panicky which resulted in his medical discharge from the Navy in 1946, and said, “then in 1949 my wife left me and then it come on pretty bad! again.” He stated that he felt better between 1946 and 1949, and managed, with some difficulty, to work; that after the return of his wife in 1949, he worked for the Porter Electric Company and “made it pretty good,” but at times had some pretty bad spells; that in 1956, while working for Porter, he broke a disc in his neck, and had “an awful time,” and “since then it has just been getting worse and worse. At times I don’t know what I am doing or where I am at.” He told of going to the Kansas City Psychiatric Center in January, 1956, when he was nervous and agitated and thought of killing himself as being the only solution of his troubles. He told of going to pieces after working four days for Porter in 1956, when he (the defendant) was “chasing his boy [son]” who was staying out all night. He stated that he had gone from one hospital to another, and as soon as he got to feeling better he wanted to get out, and would try to get a job and “just fall on my face.” He testified that shortly prior to the time of the offense and while in the Veterans Hospital in March of 1958, his wife went off with his brother; that he (the defendant) left the hospital and went to visit a stepfather in the country and was in such bad shape that the stepfather said, “If you are going to kill yourself, don’t do it down here”; that he came back to Kansas City; that he had the feeling that he wanted to get even with his wife, and would have spells “where it was just like I was somebody else or something, I didn’t know who I was or what I was doing or where I was at — it wasn’t continuous but sometimes”; that this was during the Spring and Summer of 1958; that he tried to work but was unable to think where he had to go and couldn’t work; that a son of his came to live with him, and broke the landlady’s television; that his son would bring boys into the house, including Dischart and Nixon, and keep them there all day while the defendant was trying to work; that his son had put it up to him that he (the defendant) would get along with his (the son’s) friends or the son would run away; that he did not want to lose the hoy, who was all he had left of his children; that finally, and apparently the day before the offense charged was committed, the boy let the landlady’s dog out of the house, and it was killed, and thereupon she told them to leave; that the defendant had very little money, and slept in his car part of the night, was getting “an awful bad feeling” and took tranquilizers he had received from the Veterans Administration, and some whiskey. He testified that his recollection was that the next day, August 19, 1958, the two boys asked him to drive them out to Ruskin Heights to visit some girl they knew out there; that his intentions were to come back and leave them; that they saw the girl, had the defendant stop and take her in his car to the Crown Drug Store, where she was going to eat; that they asked her if she wanted to go down to “this other girl’s house” when she got through, and said they would come back and pick her up; that he and the two boys drove down to the Wagon Wheel [Wheel-Inn Drive-In]; that when the time came the boys said, “Let’s go back and pick her up”; that he had some more vodka and had a spell come over him after they picked her up; that he doesn’t remember much more except “pulling over * * * and Dischart drove the car”; that that is all he remembers of that day until the next day; that the Government agent, in taking the defendant’s statement, kept saying: “Well, the girl said this happened,” and then wrote it down, and the defendant replied: “Well it evidently did because I am here and charged,” and that he signed the statement. He testified that he did not remember driving the car back, and that “I must have because everybody seen me, but I don’t remember that I did.”
On cross-examination, the defendant testified that he did not recall where they went after Dischart took over the driving (which was before they crossed the Kansas line); that the defendant had vodka and thinks he was drinking heavily. He was asked, “When you get in your real bad condition can you drive an automobile?” His answer was: “No, I haven’t been able to in the last year. When I get one of the real bad ones, I just try to get over to the side of the road. I was having spells a lot where I would get out and, well, just something— I would just kind of get in a fog or something; I was scared to drive, scared to go anywhere.” He told of his domestic difficulties and of occasionally slapping his wife, and of his loss of respect for women in general, which he attributed to his wife’s conduct.
At the close of the evidence, counsel for the defendant moved for a directed verdict of acquittal on the grounds of the inadequacy of the evidence to sustain a conviction of the offense charged, and the proven insanity of the defendant. The motion was denied.
The court refused an instruction requested by the defendant which incorporated the so-called Durham rule, which prevails in the District of Columbia, “ * * * that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 874-875, 45 A.L.R.2d 1480. The court in its instructions followed substantially the test established in M’Naghten’s case, 10 Cl. & Fin. 200, approved by the Supreme Court in Davis v. United States, 160 U.S. 469, 476-477, 480, 488, 492-493, 16 S.Ct. 353, 40 L.Ed. 499; Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750, and Hotema v. United States, 186 U.S. 413, 421, 22 S.Ct. 895, 46 L.Ed. 1225, and by this Court in Voss v. United States, 8 Cir., 259 F.2d 699, 702-703. See also, Fisher v. United States, 328 U.S. 463, 467-470, 66 S.Ct. 1318, 90 L.Ed. 1382, and Leland v. State of Oregon, 343 U.S. 790, 793-796, 72 S. Ct. 1002, 96 L.Ed. 1302. Briefly stated, the M’Naghten test of insanity is insufficient mental capacity, at the time of the commission of an offense, to understand its nature and to know that it is -wrong.
That portion of the Court’s charge to which counsel for the defendant directs attention reads as follows;
“Now,
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_2_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, KANSAS CITY LOCAL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Taft Broadcasting Company, Intervenor.
No. 21153.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 19, 1968.
Decided April 18, 1968.
Mr. C. David Whipple, Kansas City, Mo., of the bar of the Supreme Court of Missouri, pro hac vice, by special leave of court, with whom Mr. Samuel Levine, Washington, D. C., was on the brief, for petitioner. Mr. Lewis Gin-berg, Washington, D. C., also entered an appearance for petitioner.
Mr. Elliott Moore, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent.
Mr. James R. Willard, Kansas City, Mo., for intervenor.
Before Burger, Leventhal and Robinson, Circuit Judges.
LEVENTHAL, Circuit Judge:
This case is before the court on the petition of American Federation of Television and Radio Artists (Union) to review an order of the National Labor Relations Board dismissing a complaint against Taft Broadcasting Company (Company). The issue is whether the Board erred in refusing to find, as the complaint charged and the trial examiner held, that the Company violated Sections 8(a) (1) and (5) of the National Labor Relations Act as amended, by unilaterally changing conditions of employment after bargaining for months on proposed contract changes.
It is settled “that an employer’s unilateral change in conditions of employment under negotiation is * * a violation of § 8(a) (5), for it is a circumvention of the duty to negotiate * * *.” But the Board held that the present case was governed by this qualifying principle: “[A]fter bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals.” That is a correct statement of applicable doctrine. The salient question in this case is whether there is substantial evidence to support the Board’s finding that the parties had bargained to an impasse. We think there is, and accordingly affirm.
I
The Board’s appraisal of the bargaining situation was different from the Examiner’s. The case being a close one on the facts, they ai’e set forth more fully than is customary.
Background
When Taft Broadcasting acquired ownership of WDAF, Kansas City, Missouri, in 1964, it assumed its predecessor’s collective bargaining agreement. In May 1965 it sent the Union a notice of termination effective October 1, 1965, and requested bargaining. The proposal it duly submitted reflected a substantial departure from the existing agreement. The major changes were aimed at giving greater freedom in personnel assignments. The Company wanted complete interchangeability with respect to categories of employees and between broadcasting media without any of the limitations imposed by the existing agreement, which established a structure of fees increasing take-home pay, economic penalties and absolute prohibitions. The Company also wanted to abolish restrictions on pre-recording, which was limited under the contract to only five hours of announcers’ services per medium (AM, FM, TV) per broadcast day. The Union’s proposal, transmitted September 9, was essentially a carry-over of the old contract, with increases in wages and fringe benefits.
The Bargaining and Unilateral Changes
The parties met some 27 times in September, October and November. During this period they came to agree on certain matters, but not on the major issues separating them. The Union reported “no progress” in communications sent to its employees October 26, November 5 (when it called for a strike vote), and again on December 1 (99% of the issues outstanding “stem from Company demands for regressive changes”).
It was mutually agreed, on September 30, to continue the current contract subject to termination on 15 days notice. On November 19, the Union gave notice of intention to terminate the contract as of December 4. On November 23, the parties agreed to meet henceforth at the office of the Federal Mediation and Conciliation Service. As of November 29, the Union had rejected the Company’s proposals on the major issues — both on interchangeability, calling a modification offered in November no more satisfactory than the original proposal, and on prerecording, as to which the Company stated it would be willing to consider prerecording time limits on AM and TV, but not FM. The Company submitted a proposal for a $7.00 increase in weekly base pay. The Union accepted this on condition the old agreement would be continued in all other respects, but the Company rejected that counter proposal.
The parties were split up by the Federal mediators and met in separate sessions with the mediators on November 30. On December 1 the Union advised the employees that the Company was seeking “anti-union weapons we cannot place in the hands of the Company,” set up a temporary office structure on the lot next to the station, and ordered picket signs, which were painted December 1-3.
On December 3, the parties met in separate sessions. The Union advised, through the mediator, that it would permit unlimited pre-recording on FM if the Company would “drop off” pre-re-cording on AM and TV, an offer the Company rejected as permitting a total amount of pre-recording that was less than the contract already provided and hence represented a “deterioration.” In the late afternoon the Company asked if the Union was planning to strike the next day, and advised that it would put unilateral changes into effect the next day. The Union spokesman asked if it was the Company’s position “that we had bargained to an impasse on all items.” The Company’s attorney replied “not necessarily.”
Saturday, December 4, the last day of the existing contract, the parties met in joint session without discussion of the issues involved in the unilateral changes, though the parties agreed to meet in a subsequent bargaining session. At 4:00 p. m. the Company presented a list of the changes it planned to put into effect at 5:00 o’clock. These included, in addition to the $7.00 pay increase, interchange between media without limitation, use of pre-recording up to 70 hours per week on AM and TV and without limit on FM, certain interchangeability sufficient, e. g., to require announcers to do sports for an in-shift fee (rather than out-of-category fee).
The Company’s executive vice-president ordered the station to post these changes notwithstanding the protest of the Union’s attorney that the parties had not yet bargained to deadlock, and notwithstanding the request of the chief Union representative who said the changes would “infuriate the bargaining unit” and who forecast they would result in a strike. But at the Company’s request the Union representative promised to give 24-hour notice in advance of any strike.
Skipping Sunday, the parties met again December 6. On December 7, after the Union representative said he “couldn’t buy 70 hours of pre-recording” the Company made offers of 56 and then 50 hours, but the Union was willing to accept this only on condition the Company pay a man as if he were present at the time the material was played. There was discussion of issues without agreement on December 9, and on December 10 the Union said it “had no choice but to give the strike notice.” Picketing began December 11. During the next six months the parties met several more times, but did not reach agreement prior to the hearing.
Examiner’s Analysis and Decision
The Examiner’s decision and analysis of the case is set forth in the several following paragraphs.
The evidence does not support any contention of bad faith on the part of the Company prior to the unilateral changes. An impasse existed on December 4 as to interchange in categories and media, but there was not an impasse on certain crucial issues; e. g., on the pre-recording issue, viewed separately, there had been proposals and counter-proposals and at the time of the unilateral change the Company had indicated willingness to change its position without indicating in what respect. Thus this was not a case where both parties had adamantly adopted a position and there was nothing further to be said until one or another changed its position.
The Company was seeking major changes to bring the contract in line with its contracts in other parts of the country. The Union resisted stubbornly because the changes would result both in diminution of the unit, as fewer employees would be needed with increased pre-recording and interchange, and in reducing take-home pay. Although there were a number of individual issues which arose “they more appropriately may be viewed as a single issue, i. e., “whether the employer in exchange for the $7 across-the-board wage increase should be permitted freedom to assign its artistic personnel without regard to the categories and media * * * [and with] freedom to pre-record additional material.” Both parties appear to have recognized that the various items were interlocking, but each was unable to bring itself, or the other, to bargain on the package as a whole rather than the individual facets. Though the bargaining appeared desultory, there was in fact cautious exploration by both to determine the weak spots of their opponents. To speed up the tempo, each party took steps to “shake up” the other. The Union gave notice of termination of the agreement and engaged in discreet “saber rattling” by suggesting that a strike could result. The Company’s unilateral changes were not necessitated by economic considerations, but were imposed for tactical reasons, to get the negotiations off balance. The Union picked the goodies offered by the Company without accepting the package as a whole. The Company increased pressure by further implementing unilateral changes. There was under negotiation, without impasse, both certain particular issues, including pre-recording, and the central issue as defined. The parties were moving, albeit very slowly, and were skirting, but not yet prepared to enter, the realm of impasse.
The Company’s change on pre-record-ing announced December 4 (unlimited FM and 70-hour time limit on AM and TV), did not meet the requirement that unilateral changes instituted shall be no greater than those previously submitted to the Union.
The Company did not satisfy its bargaining duty since it failed to provide adequate opportunity to negotiate concerning the changes between the December 3 announcement and the December 4 posting. On a conflict of testimony credence is given to the Union’s negotiator who testified that he had asked on December 3 what the changes were to be. It is “improbable” that, as the Company official testified, the Union did not inquire as to what changes were in contemplation. The Union did not have an adequate opportunity to bargain about the imposition of the changes or about matters not at impasse during the short period between 4 and 5 o’clock on December 4 when they finally had knowledge of the proposed changes, and thus the Company violated the Act by changing working conditions at a time when it had a duty to bargain.
Board’s Decision
The Board, without hearing oral argument, issued a decision contrary to the Examiner’s and found the parties had bargained to an impasse on the single interlocking issue described by the Examiner. Certain issues were resolved, but there is an impasse or deadlock “whether produced by one or a number of significant and unresolved differences in positions.” The Board further found that the changes announced on December 4 were reasonably comprehended within the Company’s prior proposals. Its order dismissed the complaint.
II
In this review proceeding the Union asserts that the Company’s unilateral changes in working conditions violated Sections 8(a) (1) and (5) of the Act. It attacks the Board’s conclusion that there was an impasse and it argues alternatively that the changes were impermissible with or without impasse.
1. We begin by noting the deference a court gives to a Board finding of impasse. See Dallas General Drivers etc. v. NLRB, 122 U.S.App.D.C. 417, 419-420, 355 F.2d 842, 844-845 (1966):
[I]n the whole complex of industrial relations few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a board which deals constantly with such problems.
This court’s function is limited to considering whether in the record as a whole there is to be found substantial evidence supporting the Board’s finding of impasse. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We think there is substantial evidence supporting the Board’s finding that as of December 4, 1965, there was a deadlock following a lengthy period of good faith bargaining. As the evidentiary facts set out above make clear, minor advances toward agreement were being made all along. But on what the Company considered the critical issue the Union had not budged, and on December 4 it showed no prospect whatever of budging in the future. There were a number of evidentiary indicators of impasse, as Part I of this opinion makes clear, to support the Board’s finding. One of these was the fact that the parties had been split up by the mediator — a material indicator of impasse, though not conclusive.
Our conclusion that the Board’s finding must be sustained is not offset even though, as we are prepared to assume, the case was close on the facts and the record also contained evidence substantial enough to support a finding like that of the Examiner. Because the Board reversed the Examiner without hearing oral argument, we have given particular attention to the question whether the Board’s findings are vulnerable for failure to reflect attentive consideration of the Examiner’s decision.
We conclude that the Board’s decision is not defective on that ground, and that it reflects that consideration was given to the basis of the Examiner’s decision before the Board exercised its permissible discretion to reach a contrary result. Lorain Journal Co. v. FCC, 122 U.S.App.D.C. 127, 351 F.2d 824 (1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966). On certain points there was a conflict in testimony where the Examiner’s findings must particularly be given weight. We are satisfied, however, that the Board’s decision does not rest on a divergent view of credibility of witnesses as to evidentiary facts so much as a different overall judgment as to the proper inferences to be drawn from the largely undisputed evidence concerning the salient ultimate fact. The Examiner also has expertise and experience in this field. But the statute gives the final say, assuming support in the record, to the collegial conclusion of the Board members, who likewise have particular expertise, and also, presumptively, a judgment enhanced by the perspective of experience in affairs and a breadth of gauge that warranted a Presidential nomination to high office and Senate confirmation.
We cannot agree with the Union’s contention, extrapolated from some language in NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962), that the Company could not lawfully institute unilateral changes as long as the parties continued to negotiate.
Katz is not to be given a too-literal reading that ignores its spirit and reality. It is indeed a fundamental tenet of the act that even parties who seem to be in implacable conflict may, by meeting and discussion, forge first small links and then strong bonds of agreement. But some bargaining may go on even in the presence of deadlock. Here the continued meetings and occasional progress — facts by no means immaterial —were overborne in the Board’s view by the conceded impasse on the critical issues of staff assignment on which the progress had been “imperceptible” and, indeed, had led in some aspects, each party claimed, to a widening of the gulf between them. As we see it, the Board’s finding of impasse reflects its conclusion that there was no realistic possibility that continuation of discussion at that time would have been fruitful. The Board was justified on the record in concluding that, as of December 4, the prospects of reaching an agreement had been exhausted, and the Company had discharged its statutory obligation to conduct full and fair discussions with the Union.
Having concluded that the Board’s determination of impasse is supported by the evidence, we need not consider the Company’s claim (resisted by both the Board and the Union) that impasse is not required before unilateral changes may be instituted by employers, and that changes by employers (like strikes by employees) are legitimate economic weapons from the bargainers’ arsenal Compare American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316-318, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965); see Schat-zki, supra note 4.
2. The Union has also argued that the changes demonstrate Company bad faith even if there was an impasse when they were made.
a. First the Union says that the Company’s avowed purpose in making the changes was to circumvent the bargaining representative by an appeal directly to the workers. The Company is reputed to have been motivated by the desire to deal directly with the workers rather than with their representative. The Board sees the matter differently. It acknowledges and agrees with the principle advanced by the Union that an employer cannot, consistently with its duty to bargain in good faith, institute unilateral changes which are designed to “undermine a union’s status as bargaining representative.” Compare Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). But it denies that the Company harbored this intention. On the contrary, it views the Company’s purpose as the wholly permissible one of trying to convince the bargaining agent that the changes would not be detrimental. Ascertaining the motives of the parties, where such an inquiry is relevant, is and ought to be the task of the Board. See United Steelworkers of America, AFL-CIO (Roanoke Iron & Bridge Works) v. NLRB, 129 U.S.App.D.C. -, 390 F.2d 846 (Dec. 27, 1967).
b. In the alternative the Union argues that the Company’s bad faith is established by the circumstances under which the unilateral changes were announced and instituted. Particularly, it is said that the Company failed to give adequate notice of the changes it planned to effect when at 4:00 p. m. on December 4 it handed the Union a draft of the changes it planned to make at 5:00 p. m. that same day.. The Board argues that the adequacy of the notice period must be viewed in the whole context of factors relevant to the issue of good faith. We agree. A company that has so exhausted bargaining that it may make a unilateral change is not to be put under a universal requirement of a duty to bargain about timing or other specific aspects of a change that is within the ambit of proposals already made and rejected.
3. Finally, the Union contends that the unilateral changes initiated by the Company covering limits on prerecording were more favorable to the employees than the offers which the Company had previously extended to the Union at the bargaining table. See NLRB v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320 (1949). The Trial Examiner agreed with this assertion but the Board, reviewing the evidence, found that the Company had in fact offered to place some limits on pre-recording in the negotiation session of November 29. There is no basis for asserting that as a matter of law the particular time limits inserted constituted an element of any realistic significance that either worsened the Union’s position or required another session of negotiation because they injected a possible note of solution of impasse.
Since there is substantial record evidence for the Board’s conclusion on this and the other issues justifying its decision dismissing the complaint, the petition for review is denied.
So ordered.
. The Board’s decision and order, issued March 20, 1967, are reported at 163 NLRB No. 55.
. The Act appears at 29 U.S.C. § 151 et seq. (1964).
. NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962).
. Dallas Gen. Drivers etc. v. NLRB, 122 U.S.App.D.C. 417, 420, 355 F.2d 842, 845 (1966); NLRB v. Intracoastal Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961). See generally, Schatzki, The Employer’s Unilateral Act — A Per Se Violation— Sometimes, 44 Texas L.Rev. 470, 495-501, passim (1966); Comment, 44 Texas L.Rev. 769, 773-775 (1966).
. For example, the existing agreement prescribed specific duties, for a weekly base salary, in different categories — announcer, newscaster, sportscaster, floor manager, and director-coordinator. Generally an employee could perform duties in another category only where permitted by the contract and upon payment of an extra “out-of-category” fee.
Another example: Under the agreement, announcers were designated either “radio” or “television” and could be interchanged only under limited conditions. An announcer could interchange only after 15 minutes and only twice a day. Only three announcers could interchange a day.
. Apparently the industry is one where fees other than base pay are a substantial part of employees’ total compensation.
. For example, the parties agreed on the issues of preparation time and union shop. The Union agreed to continuation of broadcasting of station editorials by general managers. The Company accepted the Union’s proposal for rests between work weeks and withdrew its proposed changes in meal periods.
. The rejection extended to the issue raised by the Company’s desire to eliminate the “double manning” provision requiring a director as -well as coordinator for each live program. The Union also rejected a proposal for director-coordinators to be interchangeable with other employees, as no more acceptable than the Company’s original proposal (eliminating them from the agreement altogether), which had been undercut by the Regional Director’s determination of October 13, that director-coordinators were members of the appropriate unit.
. Permitting interchange, on payment of in-shift fee, “not to exceed _ hours per week per artist.” The Board agreed that this was “no real change” from the initial proposal. (JA 300, 317.)
. This apparently referred to the Company’s combination of use of pre-record-ing, elimination of categories, and rejection of Union’s proposal to eliminate broadcasting by staff employees the Board had found to be supervisors and removed from the bargaining unit. Compare Taft Broadcasting Company, Case No. 17-UC-3 (October 13, 1965) (Regional Director’s decision).
. The Board’s decision states: “The attorney replied ‘not necessarily’ or as he himself subsequently testified ‘not necessarily on each and every issue but on the contract’.” We are not required to determine whether this should be taken as an intention to resolve the issue of fact in favor of the Company.
The Board’s decision states that this came before the pre-recording discussion, but that it came later, and toward the end of the day, appears from the Examiner’s finding and the testimony of both Union and Company witnesses.
. The Examiner also found that the strike resulted from these unilateral changes and was not an economic strike. He left for future determination any remedial provisions with respect to the strike, inasmuch as the strike was settled subsequent to the hearing, and a contract may have been entered into between the parties. The Company’s motion to reopen the record for receipt of evidence relating to the strike settlement was denied by the Examiner. The Board adopted that ruling.
. It cannot be doubted that a deadlock on one critical issue can create as impassable a situation as an inability to agree on several or all issues. Cf. Dallas Gen. Drivers v. NLRB, supra (wages) ; NLRB v. Intracoastal Terminal, Inc., 286 F.2d 954 (5th Cir. 1961) (working schedules and plant closing).
. Compare Retail Store Employees etc. v. NLRB, 123 U.S.App.D.C. 360, 360 P. 2d 494 (1965).
. Oil, Chem. & Atomic Workers etc. v. NLRB, 124 U.S.App.D.C. 113, 362 F.2d 943 (1966).
. “We bold that an employer’s unilateral change in conditions of employment under negotiation is * * * a violation of § 8(a) (5) * * [Emphasis supplied by petitioner.]
. This is a sound standard of deadlock. We do not wish to be understood as approving the language used by the Board at one point (JA 325) : “[W]e are unable to conclude that a continuation of bargaining sessions would have culminated in a bargaining agreement.” Standing alone, this language might he taken as indicating that there was a burden to show sessions would have resulted in agreement. But since no objection was made to this finding we will not consider it here. New Castle County Airport Commn. v. CAB, 125 U.S.App.D.C. 268, 371 F.2d 733 (1966).
. The Board’s opinion recounted, with apparent credence, the testimony of management officials denying any attempt to circumvent the Union. J.A. 322.
. The Union negotiator had made it clear that he felt the employees would be infuriated with the changes. J.A. 44.
. The Board recounted that the Company furnished the Union a “summary of positions” which read in part: “Pre-record-ing: Union rejects the Company’s proposal to drop restrictions. In its summation the Company stated that it would be willing to consider time limits on AM and TV but not on FM.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_alj
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? 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".
Lee X. FRANKLIN, Appellant, v. A.L. LOCKHART, Appellee.
No. 89-2483.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 21, 1989.
Decided Nov. 22, 1989.
Lee X. Franklin, pro se.
Steve Clark, Atty. Gen., Little Rock, Ark., for appellee.
Before LAY, Chief Judge, and McMILLIAN and WOLLMAN, Circuit Judges.
McMILLIAN, Circuit Judge.
Lee X. Franklin, a state prisoner, appeals pro se from a final order entered in the District Court for the Eastern District of Arkansas dismissing his civil rights complaint as frivolous. For the reasons discussed below, we affirm in part and reverse in part and remand the case with directions.
In his pro se complaint Franklin alleged that his assignment to the prison hoe squad constituted cruel and unusual punishment in violation of the eighth amendment. He also alleged that he was a Muslim and that this job assignment was discriminatory and violated his first amendment rights to freedom of religion because the work required him to handle manure and dead animals. Franklin was granted leave to proceed in forma pauperis. The magistrate found that Franklin’s complaints about his prison job assignment did not state a constitutional violation and recommended that the district court dismiss the complaint as frivolous.
Franklin filed objections to the recommendation and report of the magistrate. Franklin repeated his original allegations and specifically argued that, among other things, at times he is forced to work beyond his physical capacity and, when assigned to the prison hoe squad, he is required to handle manure and dead animals in violation of his religion. The district court adopted the recommendation and report of the magistrate and dismissed Franklin’s complaint as frivolous. This pro se appeal followed.
We agree that Franklin’s complaint is frivolous to the extent that it sought a declaration that assignment to the prison hoe squad is cruel and unusual punishment per se in violation of the eighth amendment. The part of the district court order dismissing that portion of Franklin’s complaint is affirmed. However, in his complaint and in his objections to the magistrate’s recommendation and report, Franklin specifically alleged that this prison job assignment denied him free exercise of his religious beliefs and that he was forced to work beyond his physical capacity. We hold the district court erred in dismissing this portion of the complaint as frivolous because these specific allegations, if true, would constitute violations of the first and eighth amendments and would entitle Franklin to relief. See, e.g., Nash v. Black, 781 F.2d 665, 668 (8th Cir.1986).
Accordingly, we affirm in part and reverse in part and remand the case to the district court with directions. The district court is directed to refer the case to the magistrate for further proceedings. On remand the magistrate should make proposed findings about what kind of work prisoners assigned to the hoe squad are required to do, specifically whether prisoners assigned to the hoe squad must handle manure and dead animals; whether the handling of manure and dead animals violates the Moslem faith; whether Franklin sought, or required, medical treatment as a result of his prison work assignments; and whether Franklin was forced to work beyond his physical capacity.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_direct2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BARTKUS v. UNITED STATES, and three other cases.
Circuit Court of Appeals, Seventh Circuit.
June 8, 1927.
Nos. 3874-3877.
1. Conspiracy <§=>25 — Conspiracy statute does not make it crime to conspire that some person other than conspirators shall commit crime.
Conspiracy statute makes it crime for two or more persons to conspire to commit offense, but does not make it crime to conspire that some person other than conspirators shall commit it.
2. Conspiracy <§=>43(6) — Indictment for conspiracy should state essential elements of substantive offense constituting object of conspiracy.
Though technical precision is not required, essential elements of substantive offense should bo stated, when describing object of conspiracy in indictment.
3. Conspiracy <§=43(6) — In indictment for conspiracy that bankrupt corporation withhold property from trustee, allegation that corporation had been adjudged bankrupt and trustee appointed held not essential (Bankruptcy Act, | 29b, cl. I [Comp. St. § 9613]).
In indictment for conspiracy that corporation, as bankrupt, should fraudulently conceal property from its trustee in violation of Bankruptcy Act, § 29b, cl. 1 (Comp. St. § 9613), allegation that corporation had been adjudged bankrupt and trustee had been appointed held not essential.
4. Conspiracy <§=43(12) — In prosecution for conspiracy to withhold property from bankruptcy trustee, there was no fatal variance between allegation that bankrupt was “electrical company” and proof that it was “electric company.”
In prosecution for conspiracy that bankrupt corporation should withhold property from trustee, there was no fatal variance between indictment charging that corporation was Bridgeport Electrical Company and proof that it was Bridgeport Electric Company.
5. Conspiracy <§=47 — Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee.
Evidence held insufficient to support conviction of defendants for conspiring with president of bankrupt corporation to withhold property from trustee, though some of bankrupt’s property found its way into their possession.
6. Criminal law <§=l 159(2) — Circuit Court of Appeals cannot weigh evidence.
Circuit Court of Appeals is not permitted to weigh evidence in criminal case.
7. Conspiracy <§=>47 — Commission of crime may be evidence that those committing it conspired to commit it.
Though crime of conspiracy may be completed without actual commission of crime which is its object, commission of such crime may be evidence that those committing it conspired to commit it.
8. Conspiracy <§=>23 — One defendant alone cannot be convicted of conspiracy.
Where evidence was insufficient to support conviction of three of four defendants for conspiracy that bankrupt corporation withhold property from trustee, conviction of the other will be set aside also, since one person cannot commit crime of conspiracy.
In Error to the District Court o£ the United States for the Eastern Division of the Northern District of Illinois.
Alfons Bartkus, Victor Kelps, Adolph Nevar, alias Adolph Niewiardowski, and William Dronsuth were convicted of conspiracy that a bankrupt should conceal property from bis trustee, and they separately bring error.
Reversed and remanded, with direction.
John M. Zane, of Chicago, Ill., for plaintiffs in error.
George E. Q. Johnson and Edward J. Hess, both of Chicago, Ill., for the United States.
Before EVAN A. EVANS, PAGE, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
Plaintiffs in error were convicted of violating that portion of the conspiracy statute which provides: “If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * * or imprisoned, * * * or both.” Comp. St. § 10201.
The offense against the United States sought to be charged as the object of the conspiracy is the violation of clause 1 of section 29b of the Bankruptcy Act,, which, though amended since, at the time of the commission of the .alleged offense read: “A- person shall. be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense, of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy.” Comp. St. § 9613.
In substance the indictment charges that one of the plaintiffs in error, Bartkus, .was president and manager of the Bridgeport Electrical Company, a corporation, and ‘ as such president and manager dominated the acts and doings thereof, and that the plaintiffs in error, anticipating and expecting that an involuntary petition in bankruptcy would be filed against the company, and that thereafter it would be adjudged a bankrupt, and that in said bankruptcy proceedings a trustee would be appointed of and for the estate in bankruptcy of the company, did conspire, combine, confederate and agree together “to the end and for the purpose that said Bridgeport Electrical Company, a corporation, while a bankrupt as aforesaid, unlawfully, knowingly, wilfully, and fraudulently should conceal from said trustee in bankruptcy of said Bridgeport Electrical Company, a corporation, a large amount of property, to wit, the sum óf thirty five thousand dollars ($35,-000.00), and, to wit, a large quantity of merchandise and electrical goods, and goods for the manufacture of electrical appliances, and fixtures (a further and more particular description thereof is to said grand jurors unknown) of the value of, to wit, thirty five thousand dollars ($35,000.00).” Various overt acts are alleged to have been done by the defendants in pursuance of and in furtherance of said conspiracy and to effect the object of the same.
The statute makes it a crime for two or more persons to conspire to commit — that is, themselves commit — the offense. It does not, in terms, make it a crime to conspire that some person other than the conspirators shall commit it. This probably accounts for the averment in the indictment that Bartkus was president of and dominated the Bridgeport Company. Bearing in mind that he who does a thing through another does it himself, we may construe the indictment to charge that plaintiffs in error conspired to commit the crime by causing the company to commit it. It is only by so construing it that the indictment can be held to charge the crime defined by the statute.
Although- technical precision is not required, it would seem that the essential elements of the substantive offense should be stated when describing the object of the conspiracy.' The statute denounces concealment from the trustee of property belonging to the estate in bankruptcy. There is no averment in this indictment that the property intended to be concealed was the property of the estate in bankruptcy.
The objection that there is no allegation that the corporation had been adjudged a bankrupt and a trustee had been appointed for it, is not well taken. Cohen v. United States (C. C. A.) 157 F. 651; Steigman v. United States (C. C. A.) 220 F. 63.
It is urged that there is a fatal variance between one material averment and the proof. The indictment charged that it was contemplated that the Bridgeport Electrical Company should be adjudged a bankrupt, and that it should conceal property. The evidence shows that the correct name of the corporation was the Bridgeport Electric Company, and it is claimed that this is a fatal variance. This contention cannot prevail, under the case of Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118, where the charge was embezzlement of money from “National Granite State Bank” and the proof showed the correct name to be “National Granite State Bank of Exeter,” and under the ease of Beavers v. United States (C. C. A.) 3 F.(2d) 860, where the defendant was charged with having stolen from interstate commerce, and the indictment alleged that the freight was shipped by “Duke & Co.” and the evidence showed the shipment was by “W. B. Duke Sons & Co.”
As was stated by the Supreme Court in Bennett v. United States, 227 U. S. 333, at page 338, 33 S. Ct. 288, 289 (57 L. Ed. 531): “The essential thing in the requirement of correspondence between the allegation of the namo of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense.”
Plaintiffs in error contend that the evidence does not sustain the charge; that there is no evidence upon which to base the finding that Kelps, Nevar and Dronsuth conspired with Bartkus to have the company commit the offense; that is, to have the company, while a bankrupt, conceal its property from its trustee.
Government’s counsel insist that the evidence is sufficient, and review it in their brief. They conclude their review with this language:
“It thus appears that this corporation operated by defendant, Bartkus, must have been know by him to be approaching bankruptcy; that, notwithstanding this, the purchases of merchandise in the name of that company rapidly increased, and by calculations most favorable to the bankrupt, resulted in a shortage of, to wit, $27,000; that after court proceedings were had and notiee posted upon the premises of bankrupt, said defendant, with others, made numerous trips removing merchandise that ostensibly belonged to the trustee in bankruptcy. As above stated, these defendants were related; in the samo general line of business, their places of business being about one mile apart, and, at least, some of the merchandise purchased by the bankrupt found its way, under very suspicious circumstances to possession of the other defendants, namely in a private garage, three or four miles distance away in a residential district. True, defendants seek to explain their possession of' these goods by asserting purchase of the same, bat the record in this case indicates that these alleged purchases were had in the. months of November and December when defendant, Bartkus, was increasing his purchases from others, and by their very defense they were put on notiee that the Bridgeport Electric Company was insolvent. It will also be observed that while some of the defendants made the defense that they purchased this material from the Bridgeport Electric Company, their brother-in-law, Bartkus, informed them the company was in need of money, and at the very time he was in the act of withdrawing $7,500 from the treasury of the company.”
An examination of the record discloses that this is as strong a statement of the facts proved as the evidence warrants. If it be conceded that the evidence shows that Bartkus planned to have the company, of which he was president and which he dominated, commit the offense, we do not think it establishes that Kelps, Nevar, and Dronsuth, or any one of them, participated in his plan.
The most that can be said of the evidence relating to occurrences before the company became bankrupt, is that it shows that some time before the bankruptcy some merchandise which had been purchased by, and therefore was at one time owned by the bankrupt, found its way into the possession of Kelps, Nevar, and Dronsuth. It is sought to characterize this possession as fraudulent upon the ground that Kelps, Nevar, and Dronsuth were brothers-in-law of Bartkus; that they were engaged in the same business in which he was engaged; that their place of business was about a mile from his, while the garage in which the merchandise was found was three or four miles away, in a residential district ; and upon the further ground that, before the bankruptcy, Bartkus had informed them that the Bridgeport Company was in need of money. These are the suspicious circumstances relied on by government’s counsel.
The fact that some merchandise which had been purchased by bankrupt (and alsc^ may have been sold by it) found its way into the possession of Kelps, Nevar, and Dronsuth, even under the suspicious circumstances mentionéd,- does not go-' far tó establish that they ■conspired with Bartkus to commit the crime charged. The record shows that the merchandise which found its way into this garage was not of large amount or value. Government’s counsel say it was “at least, some.” No effort was made to take possession of it for the bankrupt.
While we may not weigh the evidence, we deem it proper'to say that it appears from the record that Kelps, Nevar, and Dronsuth took the witness stand themselves and gave testimony, which, if true, disposes of the supposed incriminating circumstances urged against them. They testified that they bought and paid for the goods, and explained why they had merchandise stored in a residential neighborhood — that their business was putting electrical equipment into residences. This testimony was corroborated by other witnesses and was not contradicted in any way.
- This brings us to the consideration of the •evidence that, after notice of the bankruptcy, Bártkus, “with others,” took away property which -the government said “ostensibly” belonged to the trustee. The evidence upon this fails -to establish that the ■ property taken away actually belonged- to the Bridgeport -Company: Indeed, “ostensibly” is stronger .than.the whole evidence warrants.
■[7] This taking could only be relevant to show the' intent of the alleged conspirators. While to complete the crime of- conspiracy the actual 'commission of the crime which- is its object is not necessary, its commission may be evidence that those committing it conspired to commit it; bn the familiar principle that persons are held to intend to do what they actually-'do.- So-here, concealment after .bankruptcy' by -"alleged conspirators would strongly tend to prove that- they planned to ■so- oondeal. But-the evidence shows that ■ Kelps, Nevar, and Dronsuth- were not “the others” -with Bartkus. No- one of them was present or Was shown -to have had any knowledge" of it. As, evidence that they conspired to do this particular thing, it has no probative •forcé whatever. We are-not now concerned with the question whether, if a conspiracy were proved,- 'they would be bound by Bartkus’ acts. If a conspiracy to conceal had been otherwise established, the act of Bartkus ' would be the act of' all the conspirators. But the acts'of Bartkus, "even if done'in pursuance- of á plan formed by him, if done with- ' out 1^ie participation and knowledge of Kelps, Nevar,- and Dronsuth, do not tend to show that they participated in his plan.
The'-facts proved may warrant -the conclusion that Bartkus planned to conceal the bankrupt’s property as alleged, but they are not sufficient to support a verdict that Kelps, Nevar, and Dronsuth participated with him in such plan. The verdict and judgments against Kelps, Nevar, and Dronsuth cannot stand; and as one person alone cannot commit the crime of conspiracy, and as there is no evidence to support the averment as to other conspirators unknown, the verdict and judgment as to Bartkus must also be set . aside.
Reversed and remanded, with- direction to grant a new trial.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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".
AIR-SHIELDS, INC., Petitioner, v. Honorable John P. FULLAM, Chief Judge, United States District Court for the Eastern District of Pennsylvania, Nominal Respondent, and Neomed Corporation, Respondent.
No. 89-1295.
United States Court of Appeals, Third Circuit.
Submitted Under Rule 12(6) Oct. 3, 1989.
Decided Dec. 7, 1989.
John J. Barrett, Jr., Mark C. Levy, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for petitioner.
Adam P. Schiffer, Vinson & Elkins, Houston, Tex., John J. Speicher, Rhoda, Stoudt & Bradley, Reading, Pa., for respondent.
Before SLOVITER, GREENBERG, and ROSENN, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The principal issue presented by this petition for mandamus is whether this court may review a federal district court’s order remanding a diversity case, in the face of a Congressional enactment barring appellate review, except in civil rights cases, of an order remanding a case to the state court from which it had been removed. 28 U.S.C. § 1447(d). The district court relied on a former but recently abolished statutory remand ground of improvident removal. See 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). The United States District Court in Texas, to which the case had been removed after petition, transferred the case to the federal district court in Pennsylvania after granting a motion for change of venue. The United States District Court in Pennsylvania remanded the case to the Texas state court and the petitioner-defendant, Air-Shields, Inc. (Air-Shields), appealed. We vacate and remand.
In its petition for mandamus, Air-Shields asserts that the district court had no basis for remand under the Removal Statute, 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). Though it does not raise the issue of which remand statute the district court should have followed, Air-Shields contests the court’s findings of defects in its petition for removal and surety bond. Air-Shields, therefore, petitions this court, pursuant to 28 U.S.C. § 1651 (1982), for a writ of mandamus directing the district court to vacate its remand order.
I.
Plaintiff-respondent Neomed Corporation, a Texas corporation, instituted a breach of contract suit, Neomed v. Air-Shields, Vickers, in a state court in Harris County, Texas, against Air-Shields, Vicker, a corporation chartered under the laws of Delaware. Thereafter, the court issued a citation which directed the service of process upon “Air-Shields, Vickers’ ” agent, CT Corporation.
CT Corporation is a commercial corporation which, for a fee, acts as a registered agent for service of process throughout the United States. CT was Air-Shields’ registered agent in Texas. Some time before May 9, 1988, the process server attempted to serve CT as agent for “Air-Shields, Vickers.” CT refused service because it was not authorized to accept service for a company designated as “Air-Shields Vick-ers.” CT did not notify Air-Shields of this attempted service. A second attempt was made to serve CT on May 9, 1988. On this occasion, the process server orally represented to CT’s employees that the defendant in the suit was actually “Air-Shields, Inc.,” and then physically altered the citation cover sheet by changing the name of the defendant from “Air-Shields, Vickers” to “Air-Shields, Inc.” At that point, CT consented to accept service of process.
On June 8, 1988, Air-Shields filed a petition for removal in the United States District Court for the Southern District of Texas on the basis of diversity of citizenship. The court granted the petition for removal, whereupon Air-Shields filed a motion for change of venue to the United States District Court for the Eastern District of Pennsylvania. The federal district court in Texas granted Air-Shields’ motion and transferred the case to the federal district court in Eastern Pennsylvania.
Once in the Pennsylvania district court, Air-Shields filed a motion for leave to amend its answer. Rather than addressing the motion, the court, sua sponte, issued a memorandum and order, dated January 11, 1989, remanding the case to the Texas state court where it had originated.
The district court in Pennsylvania found that the defendant had actually received service of process before May 9, 1988 but had merely “rejected” it. The defendant’s petition for removal was filed June 8, 1988. The court concluded that the removal petition was untimely, not having been filed as required by statute within "30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief....” 28 U.S.C. § 1446(b). The court also found that the removal petition was not accompanied by the required surety bond. Therefore, the court held that the case had been improvidently removed.
II.
The Removal Statutes, 28 U.S.C. §§ 1441-1452, govern the removal of a state court case to a federal district court. The Removal Statutes were recently revised under the Judicial Improvements and Access to Justice Act (“Judicial Improvements Act”). Judicial Improvements Act, Pub.L. No. 100-702, 102 Stat. 4642 (1988). Congress enacted the Judicial Improvements Act on November 19, 1988.
Although most revisions under the Judicial Improvements Act were given explicit effective dates, the amendments made in §§ 1441, 1446, and 1447 of the Removal Statutes have no stated effective date. Absent provisions to the contrary, federal legislation becomes effective on the day of enactment. United States v. York, 830 F.2d 885, 892 (8th Cir.1987); 2 Sutherland’s Statutory Construction § 33.06 (4th ed. Sands Rev.1986). Therefore, the amendments to the foregoing sections of the Removal Statutes became effective on November 19, 1988.
In its January 11,1989 memorandum and remand order, the district court cited the 1982 edition of Section 1447(c), though the 1988 revisions were in effect at the time of the memorandum. We conclude that the district court entered its remand order unaware of the newly enacted revision by the Judicial Improvements Act.
In the case of United States v. The Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801), Chief Justice Marshall authored the simple but now famous doctrine that a “court must decide according to existing laws.” Id. at 110. Courts are sometimes, however, faced with a situation where, as here, the law changes while a case is pending. In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973), the Supreme Court held that “even where the intervening law does not explicitly recite that it is to be applied in pending cases, it is to be given recognition and effect.” Id. at 715, 94 S.Ct. at 2018 (citing Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)).
According to the above doctrine, the district court was obliged to proceed under the recently amended, rather than the 1982 version, of Section 1447(e). The 1988 version of Section 1447(c) omits the previous “improvidently removed” grounds for removal and restricts the time for remand motions based on procedural defects. It provides:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
28 U.S.C. § 1447(c).
Even if the district court’s sua sponte action qualifies as a motion under the revised 28 U.S.C. § 1447(c), the district court could only remand within 30 days of the filing of notice to remove for procedural defects. Here, the district court issued its remand order more than seven months after the defendant filed its removal petition. Revised Section 1447(c) prohibits such untimely remand.
Usually, our review of such remand orders is strictly limited by subsection (d) of Section 1447. The subsection provides, with one exception, that an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d).
In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1975), the United States Supreme Court explained that “only remand orders issued under § 1447(c) and invoking the grounds specified therein ... are immune from review under § 1447(d).” In the Court’s view, Congress did not intend to “extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.” Id. at 351, 96 S.Ct. at 593 (emphasis supplied). In Thermtron, the district court remanded a case to the state court solely on the ground that its heavy docket would unjustly delay the plaintiffs from proceeding to trial on the merits.
Because the district court’s remand decision in this case also was not based on the “controlling statute,” our review is not limited by subsection (d) of Section 1447. See Bloom v. Barry, 755 F.2d 356 (3d Cir.1985); Levy v. Weissman, 671 F.2d 766 (3d Cir.1982). By remanding the case for procedural defects after the thirty day limit imposed by the revised Section 1447(c) had expired, the district court “exceeded [its] statutorily defined power.” Thermtron, supra, at 351, 96 S.Ct. at 593. Therefore, the “issuance of the writ of mandamus [is] not barred by § 1447(d).” Id.
Accordingly, the petition for mandamus will be granted and the case remanded with direction to the district court to vacate its remand order of January 11, 1989.
. A Citation under the Texas Rules of Civil Procedure appears to be the equivalent to a summons under the Federal Rules of Civil Procedure.
. Because the district court sua sponte issued its remand order, the petitioner did not have the opportunity to raise the issue of the revised remand statute before the district court. The petitioner's failure to raise that issue in this court is not as excusable. However, the matter is one affecting our jurisdiction and therefore we are free to consider it. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975).
. The 1982 version of Section 1447(c) provided that if “at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case....” 28 U.S.C. § 1447(c) (1982) (emphasis supplied).
. Blacks Law Dictionary defines "sua sponte" as "of his or its own will or motion."
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PACIFIC STATES LIFE INS. CO. v. GILL et al. (CORN BELT BANK, Intervener).
No. 5131.
Circuit Court of Appeals, Seventh Circuit.
June 13, 1934.
E. R. Elliott, of Chicago, Ill., for appellant.
John H. Page, of Eockford, Ill., for appellee Genevieve P. Gill.
Shelby L. Large, of Eockford, Ill., for appellee Com Belt Bank.
Before ALSCIIULER, EVANS, and FITZTiENRY, Circuit Judges.
EVANS, Circuit Judge
(after stating tho facts as above).
Tho Chicago National Life Insurance Company, on September 2-8, 1981, borrowed $3-,009 of Gill and deposited as security a certain note and morigage for $12,500, known as the Schultz morigage. This loan became due in five days, and upon its maturity a new loan, payable in twenty-five days, was made for the same amount and secured by the same collateral. At the same time a cheek, payable to Gill, was drawn, by the Chicago National Life Insurance Company on the Saybrook Bank to pay the first loan. This cheek was certified by the cashier of said bank, but the hank closed before the check was presented. The first loan, however, was subsequently paid by the insurance company.
The instant suit involves a controversy arising out of the second loan and mo-re particularly the refusal of Gill to deliver to appellant the Schultz note and mortgage. The second note, and the cheek executed by Gill, bore date of October 6-, or three days subsequent to the actual transaction. This postdating was in order to make sure that the cheek drawn by the insurance company would be cashed upon presentation.
When the insurance company made good its first check, it desired the return of the mortgage security which had been deposited. Appellee Gill refused to turn over the security because of the second loan. An agreement was reached, however, which was reduced to writing, the important parts of which read as follows:
“Now, Therefore, it is agreed by and between the parties hereto that if and when said cheeks last described clear and the proceeds are deposited to the account of Second Party, said Second Party will cause to he released and forwarded by registered mail to First Party the following described collateral:
“A promissory note in the sum of $12,-500.00 signed by Annie L. and Louis Schultz, dated July 3, 1929.
“1 Trust Deed securing same, signed by the same parties, to the Chicago- National Life Insurance Co., Trustee.
“Two Interest Coupon notes #5 and #0 of the same date between the same parties, each in tho sum of $375.00.
“It is further agreed by and between the parties hereto that upon tho release of and delivery of the aforesaid Three Thousand * * * Dollar cheek returned ‘N.S.F.’ to Second Party herein, Second Party will return and deliver cancelled to First Party the aforesaid principal note in the sum of Thirty Two Hundred * * * Dollars.”
Ap-peliee Gill refused to carry out the written agreement by her made to return the collateral because, as she claims, she was induced to sign the agreement upon the false and fraudulent representations made at the time of its execution by the representativo of the insurance company. Upon this issue the court found:
“ * * * The Chicago National Life Insurance Company at said conference, through its agents stated to the defendant, Genevieve P. Gill, that it desired to discontinue and terminate the loan of October 6, 1931 and desired the return of the Schultz mortgage. The defendant, Genevieve P. Gill, would not agree to return the Schultz mortgage unless her check for $3-,000, dated October 6, 1931 had not been negotiated and could be returned to her. The Chicago National Life Insurance Company, through its agents then and there stated that said check had not been negotiated and was in possession of the Chicago National Life Insurance Company and would be returned immediately to tho defendant, Genevieve P. Gill. Acting upon this representation “ * * Gill signed the contract. 8 * * Tha representations concerning the negotiation, of the said Gill cheek and concerning the possession of it by the Chicago National Life Insurance Company were untrue in this, that said check had been negotiated and said check; was not in the possession of the Chicago- National Life Insurance Company and that said statements made by the Chicago National Life Insurance Company through its agent as aforesaid, were known to be untrue and were made with the intent to deceive the defendant, Genevieve P. Gill, and to obtain her signature to said contract known as Exhibit 1. The defendant, Genevieve P. Gill, executed said contract * * * in good faith relying on the truth of the statements so made to her as to the negotiation and as to the possession of said check.”
While the suit was pending the Corn Belt Bank was permitted to intervene, and it sought relief based upon the fact that it had paid the Gill cheek which the insurance company had falsely represented was in its possession and had not been transferred. Gill stopped payment on the cheek before it was presented to the bank upon which it was drawn, and the Com Belt Bank claimed it was a holder in due course and demanded payment from Gill of the amount represented by the check.
When the rather involved statement of facts is analyzed, little difficulty is experienced in disposing of the issues presented. In fact determination of this appeal turns largely upon the question of whether the evidence suppor’s the findings. The important findings, aside from the one above set forth, are:
“The collateral given by plaintiff as security for said second note of plaintiff, dated October 6,1931, and now in the hands of the Clerk of this Court still stands as security for the payment of said note.
“Plaintiff is indebted to Genevieve P. Gill for the principal and interest due under said Second note; and Genevieve P. Gill is liable to the Com Belt Bank for the amount of her cheek in the sum of $3,000.00 and dated October 6, 1931.”
In the absence of any agreement to the contrary it is clear that the Schultz mortgage was given to Gill as security for the loan. Gill’s check to the insurance company evidenced the loan. Until she is released from liability, her right to hold the security can not be successfully challenged.
The evidence, we think, clearly showed her liability on the outstanding check to the Com Belt Bank, which the said bank acquired in the usual course of business. She was therefore indebted to this bank, as the court found, and the decree in favor of said bank against her was proper. As she was indebted to the bank in this sum, which indebtedness arose by reason of the insurance company’s depositing the cheek, the insurance company’s loan from her remained in force and was unsatisfied.
Nor do we see force in the argument that the agreement changed the rights and liabilities of the parties. Gill’s signature thereto was obtained through false and fraudulent representations which she relied on and believed to be true. The evidence amply supports the finding of the court in this respect. Nor can we accept appellant’s contention that the agreement was a divisible one, only part of which should fall because of the fraud and the other part should stand. We agree with* the District Court that the agreement was an indivisible one and either stood or fell in to to.
The decree is affirmed.
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_appel1_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
FARMERS BANK OF LOHMAN, MO., v. THOMPSON.
No. 12528.
Circuit Court of Appeals, Eighth Circuit.
Dec. 24, 1943.
Sam Bushman, of Jefferson City, Mo., for appellant.
sam W. James, Jr., of Jefferson City, Mo., for appellee.
Before STONE, THOMAS, and JOHN-SEN, Circuit Judges.
THOMAS, Circuit Judge.
This is an appeal from a judgment of the District Court sustaining a petition to review an order of a Conciliation Commissioner and remanding the cause in a proceeding under § 75, sub. s, of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s. See In re Thompson, D.C., 48 F.Supp. 557.
Both secured and unsecured claims were filed and allowed against the debtor and his estate. The debtor retained possession of his property during the three-year stay period and deposited in court each year pursuant to an order of the Commissioner $665 rental, aggregating $1,995. After payment of taxes and upkeep of the mortgaged property, there remained a balance of rentals in the amount of $1,597.58 undistributed.
At the end of the three-year period the debtor pursuant to an order of the Conciliation Commissioner, although objecting, paid into court the full amount of the reappraised value of his mortgaged property in the sum of $7,296.67, and the Commissioner entered an order turning over to him the mortgaged property free and clear of all encumbrances. The Commissioner ordered the distribution of the $7,-296.67 to the secured creditors, and they requested the confirmance of the order.
The Conciliation Commissioner then entered an order that the balance of rentals deposited by the debtor in the sum of $1,-597.58, less administrative expenses, be distributed to the unsecured creditors. The debtor alone objected to this order, and upon review the court held that the net rentals after payment of taxes, upkeep and costs of administration should have been applied on the principal of the secured debts, thus reducing by an equal amount the $7,296.67 which the debtor was required to pay into court to redeem his mortgaged property. The court accordingly entered judgment remanding the case to the Commissioner and in effect directing him to refund the net rentals to the debtor. The Farmers Bank of Lohman, an unsecured creditor, appeals from this judgment.
The judgment appealed from in this case was entered on December 4, 1942. Thereafter, on March 4, 1943, this court decided the case of Wilson v. Dewey, 8 Cir., 133 F.2d 962, involving the identical issue presented on this appeal. This court there held that no part of the rental payments made by a farmer-debtor after an adjudication in bankruptcy during the three-year period is deductible as “payments on principal” from the reappraised value of the mortgaged property which the debtor is required to pay under the Act to redeem from the mortgage. That decision is controlling in this case, and requires a reversal of the judgment appealed from.
The judgment is, therefore, reversed, and the case remanded with instructions to enter judgment and to proceed in accordance with this opinion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_appel1_7_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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 race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
Victor TORRES RIVERA, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
No. 5050.
United States Court of Appeals First Circuit.
April 26, 1956.
Victor Torres Rivera, pro se, on brief for appellant.
Luis Domingo Miranda, Asst. U. S. Atty., San Juan, P. R., with whom Rubén Rodríguez Antongiori, U. S. Atty., San Juan, P. R., was on brief, for appellee.
Before MAGRUDER, Chief Judge, and BIGGS and WOODBURY, Circuit Judges.
Judge BIGGS, a circuit judge of the Third Circuit, was designated to sit in the Court of Appeals for the First Circuit by Mr. Chief Justice WARREN.
PER CURIAM.
The appeal at bar was brought by Rivera from an order of the court below denying a motion made by him, pursuant to Section 2255, Title 28 U.S.C., to correct a sentence allegedly erroneously imposed upon him in the court below as a second offender against the Narcotics Law. See Sections 2550, 2553, 2557(b) (1), 2591(a) and 2596 of the Internal Revenue Code of 1939, Title 26 U.S.C. See also the Act of November 2, 1951, 65 Stat. 767, 21 U.S.C.A. § 174.
In the case at bar Rivera was charged in an indictment consisting of a single count with having sold two capsules of heroin in San Juan, Puerto Rico, on or about November 19, 1951. On January 24, 1952, he appeared in court, was duly arraigned and pleaded guilty. The imposition of sentence was postponed until February 8, 1952.
Section 2557(b)(1), Title 26 U.S.C., provides in pertinent part: “After conviction, but prior to pronouncement of sentence, the court shall be advised by the United States attorney whether the conviction is the offender’s first or a subsequent offense. If it is not a first offense, the United States attorney shall file an information setting forth the prior convictions. * * *” Rivera contends that the information setting out his previous conviction was not “filed” at the time the sentence in the instant case was imposed upon him as a recidivist because the information is stamped “Received & Filed Feb 8 1952 Office Clerk U.S. Dist. Ct. San Juan, P.R. 5 P.M.” He asserts, therefore, that he was illegally sentenced by the court in the instant ease and that his sentence should be “corrected.” No question of identity is presented.
Rivera’s entire ease is based upon what he alleges ta-have been the filing time of the informaiifci. as to this previous conviction. H^Hte^s that the time was 5 P.M. on Fefmiary 8th. He states, and this is doubtless true, that at that hour on February 8th he was having his supper in prison. He is, however, merely quibbling. It appears from the certificate of the Clerk of Court that the sentencing of Rivera was taken up at or after 2 P.M. on Friday, February 8, 1952, and that there was before the court at that time an information relating to the prior conviction and sentencing of Rivera, and that it was the “usual custom * * * for the clerk to bring all papers back from the courtroom to the clerk’s office, where the stamp is affixed on any document filed in open court.” It also appears from the clerk’s “Docket Entries,” that the information charging Rivera with prior conviction of the Narcotics Law was filed and that a “Copy issued defendant,” and that the “Defendant admits charge and affirms identity.”
We need not pursue the matter further. We are convinced, as apparently was the court below, that in the information stating Rivera’s former offense and conviction was before the court below prior to the sentencing in the instant case, that Rivera was fully aware of this fact and confessed his identity, and that whether the information was marked “filed” by the Clerk at the time it was before the court prior to sentence is immaterial. The better practice would, of course, be to have such a document marked at the time it was received by the Clerk, rather than stamping it at a later hour when the Clerk returns from court to her office. In any event the error is harmless, if error it was. See Rule 52(a), Fed.Rules Crim.Proc., 18 U.S.C., and Knight v. United States, 9 Cir., 225 F.2d 55, certiorari denied 1955, 350 U.S. 890, 76 S.Ct. 148.
The order of the court below denying Rivera’s motion made pursuant to Section 2255, Title 28 U.S.C., is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
sc_casesource
|
159
|
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.
October 24, 1955.
No. 16.
Walton v. California.
Robert F. Peckham and Jay A. Darwin argued the cause and filed a brief for petitioner. Clarence A. Linn, Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, and Arlo E. Smith, Deputy Attorney General.
Certiorari, 348 U. S. 894, to the Superior Court of California, Appellate Department, County of Santa Clara. Argued October 17, 1955. Decided October 24,1955.
Per Curiam:
A majority of the Court are of opinion that the record in this case fails to establish that a federal question is presented and for that reason the writ of certiorari is dismissed.
Mr. Justice Reed and Mr. Justice Douglas dissent. The Chief Justice did not participate in the consideration or decision of this case.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
SNEPP v. UNITED STATES
No. 78-1871.
Decided February 19, 1980
Together with No. 79-265, United States v. Snepp, also on petition for certiorari to the same court.
Per Curiam.
In No. 78-1871, Prank W. Snepp III seeks review of a judgment enforcing an agreement that he signed when he accepted employment with the Central Intelligence Agency (CIA). He also contends that punitive damages are an inappropriate remedy for the breach of his promise to submit all writings about the Agency for prepublication review. In No. 79-265, the United States conditionally cross petitions from a judgment refusing to find that profits attributable to Snepp’s breach .are impressed with a constructive trust. We grant the petitions for certiorari in order to correct the judgment from which both parties seek relief.
I
Based on his experiences as a CIA agent, Snepp published a book about certain CIA activities in South Vietnam. Snepp published the account without submitting it to the Agency for prepublication review. As an express condition of his employment with the CIA in 1968, however, Snepp had executed an agreement promising that he would “not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency.” App. to Pet. for Cert, in No. 78-1871, p. 59a. The promise was an integral part of Snepp’s concurrent undertaking “not to disclose any classified information relating to the Agency without proper authorization.” Id., at 58a. Thus, Snepp had pledged not to divulge classified information and not to publish any information without prepublication clearance. The Government brought this suit to enforce Snepp’s agreement. It sought a declaration that Snepp had breached the contract, an injunction requiring Snepp to submit future writings for prepublication review, and an order imposing a constructive trust for the Government’s benefit on all profits that Snepp might earn from publishing the book in violation of his fiduciary obligations to the Agency.
The District Court found that Snepp had “willfully, deliberately and surreptitiously breached his position of trust with the CIA and the [1968] secrecy agreement” by publishing his book without submitting it for prepublication review. 456 F. Supp. 176, 179 (ED Ya. 1978). The court also found that Snepp deliberately misled CIA officials into believing that he would submit the book for prepublication clearance. Finally, the court determined as a fact that publication of the book had “caused the United States irreparable harm and loss.” Id., at 180. The District Court therefore enjoined future breaches of Snepp’s agreement and imposed a constructive trust on Snepp’s profits.
The Court of Appeals accepted the findings of the District Court and agreed that Snepp had breached a valid contract. It specifically affirmed the finding that Snepp’s failure to submit his manuscript for prepublication review had inflicted “irreparable harm” on intelligence activities vital to our national security. 595 F. 2d 926, 935 (CA4 1979). Thus, the court upheld the injunction against future violations of Snepp’s prepublication obligation. The court, however, concluded that the record did not support imposition of a constructive trust. The conclusion rested on the court’s perception that Snepp had a First Amendment right to publish unclassified information and the Government’s concession— for the purposes of this litigation — that Snepp’s book divulged no classified intelligence. Id., at 935-936. In other words, the court thought that Snepp’s fiduciary obligation extended only to preserving the confidentiality of classified material. It therefore limited recovery to nominal damages and to the possibility of punitive damages if the Government — in a jury trial — could prove tortious conduct.
Judge Hoffman, sitting by designation, dissented from the refusal to find a constructive trust. The 1968 agreement, he wrote, “was no ordinary contract; it gave life to a fiduciary relationship and invested in Snepp the trust of the CIA.” Id., at 938. Prepublication clearance was part of Snepp’s undertaking to protect confidences associated with his trust. Punitive damages, Judge Hoffman argued, were both a speculative and inappropriate remedy for Snepp’s breach. We agree with Judge Hoffman that Snepp breached a fiduciary obligation and that the proceeds of his breach are impressed with a constructive trust.
II
Snepp’s employment with the CIA involved an extremely high degree of trust. In the opening sentence of the agreement that he signed, Snepp explicitly recognized that he was entering a trust relationship. The trust agreement specifically imposed the obligation not to publish any information relating to the Agency without submitting the information for clearance. Snepp stipulated at trial that — after undertaking this obligation — he had been “assigned to various positions of trust” and that he had been granted “frequent access to classified information, including information regarding intelligence sources and methods.” 456 F. Supp., at 178. Snepp published his book about CIA activities on the basis of this background and exposure. He deliberately and surreptitiously violated his obligation to submit all material for prepublication review. Thus, he exposed the classified information with which he had been entrusted to the risk of disclosure.
Whether Snepp violated his trust does not depend upon whether his book actually contained classified information. The Government does not deny — as a general principle— Snepp’s right to publish unclassified information. Nor does it contend — at this stage of the litigation — that Snepp’s book contains classified material. The Government simply claims that, in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources. Neither of the Government’s concessions undercuts its claim that Snepp’s failure to submit to prepublication review was a breach of his trust.
Both the District Court and the Court of Appeals found that a former intelligence agent’s publication of unreviewed material relating to intelligence activities can be detrimental to vital national interests even if the published information is unclassified. When a former agent relies on his own judgment about what information is detrimental, he may reveal information that the CIA — with its broader understanding of what may expose classified information and confidential sources — could have identified as harmful. In addition to receiving intelligence from domestically based or controlled sources, the CIA obtains information from the intelligence services of friendly nations and from agents operating in foreign countries. The continued availability of these foreign sources depends upon the CIA’s ability to guarantee the security of information that might compromise them and even endanger the personal safety of foreign agents.
Undisputed evidence in this case shows that a CIA agent’s violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA’s ability to perform its statutory duties. Admiral Turner, Director of the CIA, testified without contradiction that Snepp’s book and others like it have seriously impaired the effectiveness of American intelligence operations. He said:
“Over the last six to nine months, we have had a number of sources discontinue work with us. We have had more sources tell us that they are very nervous about continuing work with us. We have had very strong complaints from a number of foreign intelligence services with whom we conduct liaison, who have questioned whether they should continue exchanging information with us, for fear it will not remain secret. I cannot estimate to you how many potential sources or liaison arrangements have never germinated because people were unwilling to enter into business with us.” 456 F. Supp., at 179-180.
In view of this and other evidence in the record, both the District Court and the Court of Appeals recognized that Snepp’s breach of his explicit obligation to submit his material— classified or not — for prepublication clearance has irreparably harmed the United States Government. 595 F. 2d, at 935; 456 F. Supp., at 180.
Ill
The decision of the Court of Appeals denies the Government the most appropriate remedy for Snepp’s acknowledged wrong. Indeed, as a practical matter, the decision may well leave the Government with no reliable deterrent against similar breaches of security. No one disputes that the actual damages attributable to a publication such as Snepp’s generally are unquantifiable. Nominal damages are a hollow alternative, certain to deter no one. The punitive damages recoverable after a jury trial are speculative and unusual. Even if recovered, they may bear no relation to either the Government’s irreparable loss or Snepp’s unjust gain.
The Government could not pursue the only remedy that the Court of Appeals left it without losing the benefit of the bargain it seeks to enforce. Proof of the tortious conduct necessary to sustain an award of punitive damages might force the Government to disclose some of the very confidences that Snepp promised to protect. The trial of such a suit, before a jury if the defendant so elects, would subject the CIA and its officials to probing discovery into the Agency’s highly confidential affairs. Rarely would the Government run this risk. In a letter introduced at Snepp’s trial, former CIA Director Colby noted the analogous problem in criminal cases. Existing law, he stated, “requires the revelation in open court of confirming or additional information of such a nature that the potential damage to the national security precludes prosecution.” App. to Pet. for Cert, in No. 78-1871, p. 68a. When the Government cannot secure its remedy without unacceptable risks, it has no remedy at all.
A constructive trust, on the other hand, protects both the Government and the former agent from unwarranted risks. This remedy is the natural and customary consequence of a breach of trust. It deals fairly with both parties by conforming relief to the dimensions of the wrong. If the agent secures prepublication clearance, he can publish with no fear of liability. If the agent publishes unreviewed material in violation of his fiduciary and contractual obligation, the trust remedy simply requires him to disgorge the benefits of his faithlessness. Since the remedy is swift and sure, it is tailored to deter those who would place sensitive information at risk. And since the remedy reaches only funds attributable to the breach, it cannot saddle the former agent with exemplary damages out of all proportion to his gain. The decision of the Court of Appeals would deprive the Government of this equitable and effective means of protecting intelligence that may contribute to national security. We therefore reverse the judgment of the Court of Appeals insofar as it refused to impose a constructive trust on Snepp’s profits, and we remand the cases to the Court of Appeals for reinstatement of the full judgment of the District Court.
So ordered.
Upon the eve of his departure from the Agency in 1976, Snepp also executed a “termination secrecy agreement.” That document reaffirmed his obligation “never” to reveal “any classified information, or any information concerning intelligence or CIA that has not been made public by CIA . . . without the express written consent of the Director of Central Intelligence or his representative.” App. to Pet. for Cert, in No. 78-1871, p. 61a.
At the time of suit, Snepp already had received about $60,000 in advance payments. His contract with his publisher provides for royalties and other potential profits. 456 F. Supp. 176, 179 (ED Va. 1978).
The Court of Appeals and the District Court rejected each of Snepp’s defenses to the enforcement of his contract. 595 F. 2d 926, 931-934 (CA4 1979); 456 F. Supp., at 180-181. In his petition for certiorari, Snepp relies primarily on the claim that his agreement is unenforceable as a prior restraint on protected speech.
When Snepp accepted employment with the CIA, he voluntarily signed the agreement that expressly obligated him to submit any proposed publication for prior review. He does not claim that he executed this agreement under duress. Indeed, he voluntarily reaffirmed his obligation when he left the Agency. We agree with the Court of Appeals that Snepp’s agreement is an “entirely appropriate” exercise of the CIA Director’s statutory mandate to "protec [t] intelligence sources and methods from unauthorized disclosure,” 50 U. S. C. §403 (d)(3). 595 F. 2d, at 932. Moreover, this Court’s cases make clear that — even in the absence of an express agreement — the CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. CSC v. Letter Carriers, 413 U. S. 548, 565 (1973); see Brown v. Glines, ante, p. 348; Buckley v. Valeo, 424 U. S. 1, 25-28 (1976); Greer v. Spock, 424 U. S. 828 (1976); id., at 844-848 (Fowell, J., concurring); Cole v. Richardson, 405 U. S. 676 (1972). The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. See infra, at 511— 512. The agreement that Snepp signed is a reasonable means for protecting this vital interest.
The Government's concession distinguished this litigation from United States v. Marchetti, 466 F. 2d 1309 (CA4), cert. denied, 409 U. S. 1063 (1972). There, the Government claimed that a former CIA employee intended to violate his agreement not to publish any classified information. 466 F. 2d, at 1313. Marchetti therefore did not consider the appropriate remedy for the breach of an agreement to submit all material for prepub-lication review. By relying on Marchetti in this litigation, the Court of Appeals overlooked the difference between Snepp’s breach and the violation at issue in -Marchetti.
The first sentence of the 1968 agreement read: “I, Frank W. Snepp, III, understand that upon entering duty with the Central Intelligence Agency I am undertaking a position of trust in that Agency of the Government. . . .” App. to Pet. for Cert. in No. 78-1871, p. 58a.
Quite apart from the plain language of the agreement, the nature of Snepp’s duties and his conceded access to confidential sources and materials could establish a trust relationship. See 595 F. 2d, at 939 (Hoffman, J., concurring in part and dissenting in part). Few types of governmental employment involve a higher degree of trust than that reposed in a CIA employee with Snepp’s duties.
Every major nation in the world has an intelligence service. Whatever fairly may be said about some of its past activities, the CIA (or its predecessor the Office of Strategic Services) is an agency thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and — in a sense — the free world. It is impossible for a government wisely to make critical decisions about foreign policy and national defense without the benefit of dependable foreign intelligence. See generally T. Powers, The Man Who Kept the Secrets (1979).
In questioning the force of Admiral Turner’s testimony, Mr. Justice SteveNs’ dissenting opinion suggests that the concern of foreign intelligence services may not be occasioned by the hazards of allowing an agent like Snepp to publish whatever he pleases, but by the release of classified information or simply the disagreement of foreign agencies with our Government’s classification policy. Post, at 522-523. Mr. Justice Stevens’ views in this respect not only find no support in the record, but they also reflect a misapprehension of the concern reflected by Admiral Turner’s testimony. If in fact information is unclassified or in the public domain, neither the CIA nor foreign agencies would be concerned. The problem is to ensure in advance, and by proper procedures, that information detrimental to national interest is not published. Without a dependable prepublication review procedure, no intelligence agency or responsible Government official could be assured that an employee privy to sensitive information might not conclude on his own — innocently or otherwise — that it should be disclosed to the world.
The dissent argues that the Court is allowing the CIA to “censor” its employees’ publications. Post, at 522. Snepp’s contract, however, requires no more than a clearance procedure subject to judicial review. If Snepp, in compliance with his contract, had submitted his manuscript for review and the Agency had found it to contain" sensitive material, presumably— if one accepts Snepp’s present assertion of good intentions — an effort would have been made to eliminate harmful disclosures. Absent agreement in this respect, the Agency would have borne the burden of seeking an injunction against publication. See Alfred A. Knopf, Inc. v. Colby, 509 F. 2d 1362 (CA4), cert. denied, 421 U. S. 992 (1975); United States v. Marchetti, 466 F. 2d 1309 (CA4), cert. denied, 409 U. S. 1063 (1972).
Although both the District Court and the Court of Appeals expressly found otherwise, Mr. Justice Stevens says that “the interest in confidentiality that Snepp’s contract was designed to protect has not been compromised.” Post, at 516-517. Thus, on the basis of a premise wholly at odds with the record, the dissent bifurcates Snepp’s 1968 agreement and treats its interdependent provisions as if they imposed unrelated obligaT tions. Mr. Justice SteveNS then analogizes Snepp’s prepublication review agreement with the Government to a private employee’s covenant not to compete with his employer. Post, at 518-520. A body of private law intended to preserve competition, however, simply has no bearing on a contract made by the Director of the CIA in conformity with his statutory obligation to “protec [t] intelligence sources and methods from unauthorized disclosure.” 50 U. S. C. §403 (d)(3).
Judge Hoffman’s dissent suggests that even this remedy may be unavailable if the Government must bring suit in a State that allows punitive damages only upon proof of compensatory damages. 595 F. 2d., at 940. The Court of Appeals majority, however, held as a matter of federal law that the nominal damages recoverable for any breach of a trust agreement will support an exemplary award. See id., at 936, and n. 10, 937-938.
See id., at 939 (Hoffman, J., concurring in part and dissenting in part). Mr. Justice Stevens concedes that, even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment. Post, at 518. He also concedes that all personal profits gained from the exploitation of such information are impressed with a constructive trust in favor of the employer. Post, at 521. In this case, he seems to think that the common law would not treat information as “confidential” unless it were “classified.” See, e. g., post, at 518. We have thought that the common-law obligation was considerably more expansive. See, e. g., Restatement (Second) of Agency §§ 396 (c), 400 and Comment c, 404 and Comments b, d (1958); 5 A. Scott, Trusts § 505 (3d ed. 1967). But since this case involves the breach of a trust agreement that specifically required the prepublication review of all information about the employer, we need not look to the common law to determine the scope of Snepp’s fiduciary obligation.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Frank ALTOBELLA and James Moxley, Defendants-Appellants.
Nos. 18254, 18255.
United States Court of Appeals, Seventh Circuit.
April 8, 1971.
Rehearing Denied May 26, 1971.
Thomas D. Decker, Ronald P. Alwin, Federal Defender Program, Chicago, Ill., for defendants-appellants.
Craig M. Bradley, Atty., Dept, of Justice, Criminal Div., Washington, D. C.,
William J. Bauer, U. S. Atty., Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, Chief Circuit Judge, KNOCH, Senior Circuit Judge, and STEVENS, Circuit Judge.
STEVENS, Circuit Judge.
The squalid facts of this ease give rise to a serious question of federal jurisdiction. The record discloses a plain violation of the Illinois statute prohibiting extortion. The issue for us to decide is whether defendants are also guilty of violating either the federal conspiracy statute, 18 U.S.C. § 371, or the federal statute enacted in 1961 “to prohibit travel or transportation in commerce in aid of racketeering enterprises,” 75 Stat. 498, 18 U.S.C. § 1952. Although the “Travel Act” can be read to cover this case, we have concluded that this prosecution is beyond the limits of the criminal jurisdiction which Congress intend- ■ ed to confer on the federal courts.
I
The jury found both appellants guilty on both counts. To clarify the federal question, we shall first- summarize the evidence disclosing a violation of Illinois law.
The participants in the extortion were appellants Altobella and Moxley and a young entertainer named Joan Patterson. Patterson’s testimony described the plan. She agreed to help Altobella and Moxley “to make a fast buck.” She was to pick up a businessman, preferably one who was married and had a family, in one of the hotel bars in the loop area. “After I met him I was supposed to lead him to believe that he was a Don Juan, and then take him- to an apartment and * * * get him into a compromising position so that pictures could be taken.”
In early October Patterson made the acquaintance of a Philadelphia businessman in the Essex Motel bar. Before they parted he told her that he would be returning to Chicago in about ten days, and requested her to call him at the Sherman House. Promptly thereafter Patterson reported to Altobella that she had “found just the type of guy we were looking for.” They then agreed upon the procedure for taking pictures.
On Thursday, October 19, Patterson reached her victim at the Sherman House and made a date for that evening. During dinner she excused herself, telephoned the defendants, and then led the badger into the trap. In due course the flashbulbs went off, Altobella accompanied by Moxley came into the bedroom with a gun, and Patterson departed with the camera and film. Except for receiving $50 from Altobella the next day, Patterson had no further contact with the extortion. She destroyed the camera and film on Saturday, after learning that Altobella had been arrested.
The victim testified that after Patterson departed, Altobella made a demand for $5,000 for the return of the negatives. He responded that “Under no circumstances would I ever be able to get that kind of money * * * then they reduced the amount to * * * $2500, which I said was just as ridiculous * * * and after about an hour and a half or so, I told them that the best thing that I could do under any circumstances was to give them maybe $500 or $600. They wanted me to go down to the hotel and get it from friends. I told them that I couldn’t do that, but that I would give them $100 now, plus the money that I had on the table, which was about $50 or $60, and they took $50 of it and left me with the $15. I told them I would go down to the hotel and write a cheek and give them $100.”
Moxley told him that he would be contacted at home and would have to bring the rest of the money to Chicago; Al-tobella and Moxley stated that they would tell him when and where the meeting would take place. They did not state whether the contact would be by phone or letter.
Altobella then drove the victim to the Sherman House and waited outside for 10 or 15 minutes while he went to his hotel room, obtained his checkbook and wrote a cheek, which he cashed at the desk. He then delivered $100 to Altobel-la who was waiting about a block from the hotel.
Appellants concede that the foregoing facts established a violation of the Illinois Criminal Code. They dispute the sufficiency of the following additional facts as a basis for federal jurisdiction.
Appellants knew their victim was from Philadelphia. They knew he intended to obtain the $100 by cashing a personal check. The check was drawn on a Philadelphia bank. After being cleared through two Chicago banks, it was forwarded to Philadelphia by mail on October 24. Altobella accepted the $100 proceeds and thereafter distributed $50 to Patterson.
II.
Both counts of the indictment focus on the use of the mails to carry on an unlawful activity, to wit, extortion in violation of Illinois law. Both counts charge that the unlawful activity continued after the use of the mails.
It is the government’s theory that the mails were used on October 20, 1967, when appellants caused their victim to cash a $100 cheek which was then irrevocably started on its way to Philadelphia. The defendants contend that the mails were not used until October 24, 1967, when the Federal Reserve Bank in Chicago forwarded the item to Philadelphia. Both parties agree that the charges in the indictment required proof that appellants’ unlawful activity was carried on after the “use” of the mails within the meaning of 18 U.S.C. § 1952. The requirement of unlawful activity “thereafter” is satisfied, according to the government, by Altobella’s acceptance of $100 and his delivery of part of those proceeds to Patterson.
Theoretically, the conspiracy charge and the substantive charge could raise different issues. On the peculiar facts of this ease, however, both counts present us with the question whether a violation of the Travel Act has been established. There is no evidence in the record of any actual or intended use of the mails by appellants with the single exception of their acceptance of their victim’s offer to cash a check for $100 at his hotel. For the purpose of decision, we find it unnecessary to decide whether the use of the mails occurred on October 20 or October 24, 1967, within the meaning of 18 U.S.C. § 1952. We assume with the government that causing the check to be cashed on October 20 established the time when appellants’ use of the mails occurred. We do not agree, however, that that one act, plus what happened “thereafter,” was sufficient to invoke the federal statute.
III.
The relevant statutory language reads as follows:
Ҥ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises.
“(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
“(1) distribute the proceeds of any unlawful activity; or
“(2) commit any crime of violence to further any unlawful activity ; or
“(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.”
In general, the purpose of the Travel Act was to attack criminal activities extending beyond the borders of one state by providing federal assistance in situations in which local law enforcement was ineffective. United States v. Nardello, 393 U.S. 286, 290-292, 89 S.Ct. 534, 21 L.Ed.2d 487. Two principal ingredients of the offense were specified: the kind of unlawful activity characteristically pursued by organized crime; and the use of interstate facilities in aid of the criminal enterprise.
That Congress did not intend to exercise its full constitutional powers in the area of local law enforcement is demonstrated by the wording of the Act and specifically by the use of the word “thereafter.” As the Senate report on S.1653 states:
“ * * * to come within the provisions of the bill some activity in furtherance of a racketeering enterprise, subsequent to the performance of the travel, must take place * * * accordingly the gravamen of the offense will be travel and a further overt act to aid the enterprise.” S.Rep.No.644, 87th Cong., 1st Sess.1961, p. 2.
To warrant federal intervention we believe the statute requires a more significant use of a facility of interstate commerce in aid of the defendants’ unlawful activity than is reflected on this record. Cf., United States v. Hawthorne, 356 F.2d 740 (4th Cir. 1966), cert. denied 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360.
Thus, a gambling operation conducted on an interstate carrier, United States v. Brennan, 394 F.2d 151 (2nd Cir. 1968), cert denied 393 U.S. 839, 89 S.Ct. 117, 21 L.Ed.2d 110, or by regularly traveling across a state line to obtain essential supplies, United States v. Puntillo, 440 F.2d 540 (7th Cir. 1971); the employment of out-of-state specialists in aid of the criminal enterprise, United States v. Roselli, et al., 432 F.2d 879 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828; the use of interstate “credit cards” and mailing lists to attract out-of-state patrons, United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969); and the use of a Western Union ticker tape recording information received from out of state as a regular and continuous element of the illegal enterprise, United States v. Miller, 379 F.2d 483 (7th Cir. 1967); all provide examples in which federal assistance to local law enforcement is entirely appropriate and clearly contemplated by the history and language of the Travel Act.
But there is nothing about the appellants’ enterprise, as disclosed by the evidence, which suggests any reason why state police powers need to be supplemented by the federal government. The use of the mails by the bank through which appellants’ victim’s check was cleared, a few days after it had been cashed at the Sherman House, was purely incidental to appellants’ sordid scheme. Their purpose would have been achieved equally well if the victim had borrowed $100 from associates at the hotel or written a check on a local bank. Moreover, the unlawful activity which followed the cashing of the cheek was merely the payment of $50 to Patterson. Unquestionably, the distribution of proceeds of criminal activity may satisfy the “thereafter” requirement of the statute in a proper case. But when both the use of the interstate facility and the subsequent act are as minimal and incidental as in this case, we do not believe a federal crime has been committed.
Unquestionably appellants’ unsuccessful attempt “to make a fast buck” is punishable as a crime. We merely hold that the State of Illinois is the appropriate sovereign to prosecute their offense. We do not believe Congress intended to authorize federal intervention in local law enforcement in a marginal case such as this. We are guided by the Supreme Court’s admonition “that in ascertaining the scope of congressional legislation a due regard for a proper adjustment of the local and national interests in our federal scheme must always be in the background, * * * ” Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 582, 85 L.Ed. 881.
The judgment is reversed.
. Ill.Rev.Stat., Ch. 38, § 16-1 (1969).
. Patterson was separately indicted; after the conviction of Altobella and Moxley, the charges against her were dismissed.
. In the ensuing several days Altobella showed her an apartment he had rented (lie paid tlie weekly rent of $30 in advance on September 27, October 5, and October 12). He explained liow the pictures would be taken, and pointed out that a telephone had been installed to enable her to call before she brought the badger to the apartment. In general, Al-tobella reported that the project was going “pretty good except we need some money for photographic equipment.”
. The witness testified that he assumed the contact would be by telephone, but that assumption was stricken.
. Count One of the indictment charged a violation of 18 TJ.S.C. § 371. It charged that appellants engaged in a conspiracy with Patterson beginning on or about October 1, 1967, and continuing until October 20, 1967, to use “facilities in interstate commerce, to wit, the United States Mail,” to carry on “an unlawful activity, to wit, extortion, in violation of the laws of the State of Illinois,” and thereafter to “perform acts of promotion, management, establishment and carrying- on of the said unlawful activity, in violation of Title 18, United States Code, Section 1952.”
Count Two charged that on October 20, 1967, appellants and Patterson did use and cause to be used the United States Mail to carry on an unlawful activity, “and thereafter, on or about October 20, 1967,” they did perform acts facilitating the carrying on of said unlawful activity-in violation of 18 U.S.C. § 1952.
. Except for the evidence tending to prove the substantive violation, the record contains no evidence tending to prove the conspiracy charged in the indictment. The government argues that the indictment may be read to contemplate future mailings in aid of the criminal enterprise. But if that reading is warranted, it is unsupported by proof.
. “Testimony produced at the hearings clearly demonstrated the interstate network of criminals engaged in such unlawful activities. It further demonstrated the need for the assistance of the Federal Government in view of the fact that law enforcement authorities are limited and hindered by the interstate nature of these activities.” H.R.Rep.No.966, 87th Cong., 1st Sess., 1961 p. 3.
In a letter dated April 6, 1961 (reprinted in H.R.Rep.X'o.966, supra, at p. 4), addressed to the Speaker of the House of Representatives, Attorney General Kennedy stated, in part:
“Over the years an ever-increasing portion of our national resources has been diverted into illicit channels. Because many rackets are conducted by highly organized syndicates whose influence extends over State and National borders, the Federal Government should come to the aid of local law enforcement authorities in an effort to stem such activity.
“The bill which I submit to the Congress would impose criminal sanctions upon the person whose work takes him across State or National boundaries in aid of certain ‘unlawful activities.’
»!> ^
“The effect of this legislation would be to impede the clandestine flow of profits from criminal ventures and to bring about a serious disruption in the far-flung organization and management of co-ordinated criminal enterprises. It would thus be of material assistance to the States in combatting pernicious undertakings which cross State lines.”
. “The Attorney General testified before the committee on May 17, 1961, in support of the bill. In this testimony he cited numerous instances of the use of the facilities of interstate commerce by racketeers and hoodlums to promote the illegal enterprise, to distribute the proceeds among the syndicate members of illegal gambling, liquor, narcotics, and prostitution business and the use of the facilities for the commission of crimes of violence in furtherance of the unlawful activities.” H.R.Rep.No.966, supra at p. 2. See S.Rep.No.644, 87th Cong., 1st Sess. 1961; Pollner, “Attorney General Robert F. Kennedy’s Legislative Program to Curb Organized Crime and Racketeering,” 28 Brooklyn L.Rev. 37 (1961); Miller, “The ‘Travel Act,’ a New Statutory Approach to Organized Crime in the United States,” 1 Duquesne L.Rev. 181 (1963).
. The conference report accompanying the final version of S.1653, which is now 18 U.S.C. § 1952, makes it clear that adoption of the House proposal, which combined the two sections of the Senate draft and eliminated the words “after such travel” as superfluous, did not change the bill substantively. H.R. Conference Report No. 1161, 87th Cong., 1st Sess. 1961, p. 4. The government has not argued that the scope of the Act is broader when use of the mails is charged. The Senate report explains the Keating amendment to S.1653 extending the coverage of the statute to use of the mails. There is no suggestion in the report that the scope of the Act is intended to be broader when the mails or other facilities of interstate, rather than travel, are involved. See S-Rep. No.644, supra, at p. 2.
. The following excerpts from the Attorney General’s testimony at the Senate hearings on June 6, 1961, are quoted in the Senate report accompanying S.1653:
“Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illegal businesses as spelled out in the bill.
* * * * *
“The target clearly is organized crime. The travel that would be banned is travel ‘in furtherance of a business enterprise’ which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business entex'pi’ise.
“When the tightly wx-itten px-ovisions of this bill are set against the tx'e-mendous area of interstate commex-ce which involves traveling by individuals,
I believe it is clear that we have carefully delineated an area of law enforcement which will disrupt the organized criminal syndicates without intei’fei’ing with general travel.
“Our investigations also have made it quite clear that only the Federal Government can shut off the funds which pex-mit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officials.
So we believe that the Federal Government has a definite responsibility to move against these people and limit their use of interstate commerce.” S. Eep.No.644, supra, at p. 3.
In summarizing the bill on the floor of the Senate, Senator Eastland stated, in part:
“The Committee has received testimony that the complex operations of today’s ox’ganized ei'iminal syndicate x-ecognize no state bouxxdai'ies. S.1653 is intended to disxaxpt the intexxstate operation of these criminal organizations by making it impossible for organized gambling and other illegal activities to opex-ate on an intei-state scale beyond the reach of • local law enforcement agencies.
j¡; :¡: * í¡; :¡í
“The Committee has tightened the bill to require that the individual doing the traveling for an illegal purpose must, after his travel, perforan or attempt to perfox-m one of the acts fox’bidden by the bill.” 107 Cong.Rec., Part 10, p. 13943.
. We have no occasion to consider the constitutional limits of federal power over local crimes because it is clear that Congress did not intend to exercise its full power over cx-iminal activities that merely affect interstate commerce. It was primarily concerned with the interstate activity itself. Compare Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 351, 61 S.Ct. 580, 85 L.Ed. 881, with United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 298, 65 S.Ct. 661, 89 L.Ed. 951. See also, Marshall v. United States, 355 F.2d 999, 1004 (9th Cir. 1966).
. The government also suggests that the application of the statute is warranted by the fact that appellants’ victim was from out of state. That theory, however, is not set forth in the indictment and there was no evidence of a plan to lure out-of-state victims to Chicago, or even that the conspirators intended to select an out-of-town victim. Moreover, the application of the statute on a comparable theory has just been squarely rejected by the Supreme Court. Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (decided April 5, 1971).
. It is clear that Congress did not intend to preempt state prosecutions in this area. H.R.Rep.No.966, supra, at p. 3.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
STONE et al. v. BANK OF WHITECASTLE.
(Circuit Court of Appeals, Fifth Circuit.
March 17, 1927.)
No. 4808.
1. Appeal and error <®=»850(2) — Judgment after waiver of jury is conclusive, in absence of motion for judgment and special findings of fact.
Judgment on the merits after waiver of jury is conclusive, where there was no motion for judgment and no special findings of fact, precluding examination of record to determine if result was justified by facts shown.
2. Appeal and error <@=»544( I) — Assignments to admission or exclusion of answers to interrogatories present nothing for review, where judge declined to sign bills of exceptions.
Assignments to admission or exclusion of answers to certain interrogatories present nothing for review, where District Judge declined to settle certain bills of exceptions as being too late, and declined, when signing bill of exceptions containing stenographic report of evidence and documentary evidence, to certify that evidence presented was all evidence adduced, or true and correct statement thereof.
In Error to the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Rufus E. Poster, and Benjamin C. Dawkins, Judges.
Suit by T. A. Stone and others against the Bank of Whiteeastle. Judgment for defendant, and plaintiffs bring error.
Affirmed.
John B. Warren, of Houston, Tex. (Cross & Moyse, of Baton Rouge, La., on the brief), for plaintiffs in error.
P. G. Borron, of Baton Rouge, La., and Stuart R. Smith, of Beaumont, Tex. (Lay-cock, Borron & Layeoek, of Baton Rouge, La., on the brief), for defendant in error.
Before WALKER, BRYAN, and POSTER, Circuit Judges.
POSTER, Circuit Judge.
Plaintiffs in error, plaintiffs below, brought suit to recover $14,600 as compensation for services alleged to have been rendered in procuring a purchaser for certain timber belonging to the defendant. After settlement of the pleadings the jury was waived, and the case submitted on the merits to Hon. Charlton R. Beattie, District Judge. Judge Beattie died before deciding the case, and by agreement it was then submitted to his successor, Hon. Louis H. Bums, District Judge, on the record as made up before Judge Beattie. After due consideration, Judge Bums entered judgment in favor of defendant in error and dismissed the suit.
In submitting the ease, neither side moved for judgment, nor was there any request for special findings of fact. No findings of fact were made by the District Court, although a brief opinion of Judge Bums appears in the record, which, of course, cannot take the place of special findings of fact. The judgment entered is in the nature of a general verdict.
There are 18 assignments of error. Eleven of them may be considered as attacking the judgment as contrary to the law and the evidence, for various reasons. As there was no motion for judgment, and there are no special findings of fact, the judgment rendered is conclusive on the parties, and we are not at liberty to examine the record, to determine whether the result was justified by the facts shown. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 P. 478.
The other 7 assignments run to the admission or exclusion of answers to certain interrogatories filed in evidence. These assignments are wholly unsupported by bills of exceptions. It appears from the record that 7 bills of exception on which these assignments might have been based were presented to Judge Bums, and he declined to settle and sign them on the ground that they were presented too late. The eighth bill of exceptions is simply a narrative of the course of the case; that is, that it was first heard before Judge
■ Beattie and later before Judge Burns. This bill of exceptions recites that the stenographic report of the evidence made by a stenographer, Sherrer, and the documentary evidence on file in the office of the clerk of the court, is the evidence upon which the court rendered judgment.
While this evidence appears in the record, it is objected to by defendant in error as not being complete because of the omission of certain correspondence between the parties, and the bill of exceptions does not make the evidence in the record part of the bill. In fact, it appears that, although Judge Bums signed this bill, he declined to certify that the evidence presented was all of the evidence adduced, or that it was a true and correct statement of the evidence upon which the case was heard. This, of course, disposes of the errors assigned.
However, with a desire to do justice, should there be any error apparent, we have examined the record, and have reached the conclusion that the objections to the admission and exclusion of testimony are without merit, and that on the whole case the District Court decided rightly.
Affirmed.
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_state
|
14
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
The COUNTY OF COOK, a body politic and corporate, and The People of Cook County, ex rel. Richard M. Daley, State’s Attorney of Cook County, and City of Chicago, a municipal corporation and a body politic, Plaintiffs-Appellants, v. MIDCON CORPORATION, et al., Defendants-Appellees.
No. 83-3125, 83-3160.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 7, 1985.
Decided Sept. 24, 1985.
John Touhy & Joseph Witkowski, Shea, Rogal & Assoc. Frank J. Parkerson, Asst. State’s Atty., Chicago, 111., for plaintiffs-appellants.
Michael M. Conway, Hopkins & Sutter, Charles W. Boand, Wilson- & Mcllvaine, Chicago, 111., for defendants-appellees.
Before WOOD, CUDAHY and FLAUM, Circuit Judges.
CUDAHY, Circuit Judge.
These appeals concern events related to a 1981 corporate reorganization involving Peoples Energy Corporation, MidCon Corporation and their corporate subsidiaries. Plaintiffs, the City of Chicago and the County of Cook, brought a class action on behalf of gas consumers against the various corporate defendants, their officers and directors, and their independent auditor, Arthur Andersen & Co., alleging that defendants had violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, (“RICO”) by conducting the affairs of MidCon, Peoples Energy and their subsidiaries through a pattern of racketeering. Specifically, plaintiffs claim that Peoples Energy’s two utility subsidiaries, Peoples Gas Light and Coke Company and North Shore Gas Company, engaged in a scheme to defraud which began when those subsidiaries obtained rate increases between 1977 and 1980 on the basis of intentional misrepresentations that such increases were necessary to provide adequate and efficient utility service. Thereafter, plaintiffs allege, the utility subsidiaries diverted the revenues derived from the rate increases by paying excessive dividends to Peoples Energy, which invested the proceeds in nonutility subsidiaries. The scheme allegedly came to fruition in the 1981 reorganization, in which Peoples Energy divested the nonutility subsidiaries to MidCon. Plaintiffs also brought various pendent state claims.
While this suit was pending, a judgment was rendered in a state court action which also concerned the reorganization. Thereafter, the district court granted defendants’ motions to dismiss the RICO claims, on the alternative grounds of collateral estoppel and failure to state a claim. The court also dismissed the state law claims on the basis of res judicata and collateral estoppel. Plaintiffs now appeal.
I.
The district court’s opinion dismissing plaintiffs’ actions is reported at 574 F.Supp. 902 (N.D.Ill.1983). For the convenience of the reader we reprint the district court’s statement of facts in its entirety:
“Before filing complaints in this court, the County of Cook and the City of Chicago were parties to two consolidated cases before Judge George J. Schaller of the Circuit Court of Cook County, Chancery Division. The proceedings in the state court commenced August 20, 1981, when several of the defendants in this action, Peoples Energy Corporation, MidCon Corporation, and Natural Gas Pipeline Company of America, filed a complaint against the Illinois Commerce Commission which sought, inter alia, an injunction against interference with a planned corporate reorganization. Peoples Energy proposed to transfer the common stock of its nonutility subsidiaries to a newly incorporated holding company, MidCon Corporation, in exchange for Mid-Con stock which was to be distributed to shareholders of Peoples Energy on a pro rata basis. Under the plan, Peoples Energy would continue to hold the common stock of its two public utility subsidiaries, The Peoples Gas Light and Coke Company and North Shore Gas Company. On September 3, 1981 the Illinois Commerce Commission filed a separate action against Peoples Energy, MidCon and Natural, as well as Peoples Gas Light and North Shore, seeking to enjoin the proposed reorganization; this suit eventually was consolidated with the already pending action in which the Commerce Commission was a defendant.
“Cook County intervened in the state litigation on September 16, 1981 as a defendant to the affiliated corporations’ suit for injunctive relief against interference with the reorganization by the Illinois Commerce Commission, and as a counterplain-tiff seeking to enjoin the proposed Peoples reorganization. By this time, various other parties also had intervened in the proceedings as defendants and counterplaintiffs; among them were the State of Illinois, the Governor’s Office of Consumer Service, an agency of the Illinois executive branch, Business and Professional People for the Public Interest, Inc., a not-for-profit corporation, and the South Austin Coalition Community Council, a not-for-profit community organization. In September and October 1981, Judge Schaller conducted a five-week hearing on the parties’ cross motions for preliminary injunctive relief. On October 23, 1981, he issued a 54-page decision, granting a preliminary injunction to Peoples and its affiliates, and denying such relief to the Illinois Commerce Commission, Cook County, and the other intervenors. After obtaining the approval of shareholders, Peoples and its affiliates implemented the reorganization on November 30, 1981. According to plan, control of the nonutility subsidiaries was transferred to MidCon from Peoples Energy, the remaining corporate parent of the two public utility subsidiaries.
“Cook County filed an amended counterclaim before Judge Schaller on February 4, 1982, seeking a declaratory judgment that the Peoples reorganization was void, and praying for a permanent injunction requiring the corporations involved in the reorganization to undo what they were attempting to accomplish. Thereafter, on April 27, 1982, Judge Schaller granted the City of Chicago leave to intervene as an additional defendant-counterplaintiff. The City’s intervention was subject to various terms and conditions: Chicago was to be bound by all orders previously entered by the state court; it was not to raise new issues or add new parties; finally, it was not to interfere with the control of the litigation in a manner which promoted injustice or caused undue delay. In its counterclaim, the City, too, sought an order granting declaratory and injunctive relief reversing the Peoples reorganization transaction.
“In their counterclaims, the City and the County alleged that the Peoples reorganization was an ill-conceived attempt to circumvent the jurisdiction of the Illinois Commerce Commission while the corporations involved deprived consumers of the benefits of assets properly belonging to the rate base of the public utilities, Peoples Gas and North Shore, by transferring those assets to MidCon. Cook County specifically alleged that excessive dividend payments extracted from the utility subsidiaries, combined with Peoples Energy’s investment policy of investing these funds in its nonutility holdings, constituted an arrangement which facilitated the exchange of utility assets to MidCon when the reorganization took place. As a consequence of the reorganization, consumers were injured, both parties contended, by having to pay increased gas prices while receiving less reliable service. These core allegations were repeated in virtually every pleading filed by the other intervening parties.
“After obtaining the preliminary injunction, the Peoples affiliates filed a motion on October 28, 1981 for permanent injunctive relief. Judge Schaller then set July 6, 1982 as the trial date for hearing on the merits all the various claims and counterclaims of the parties.
“On May 6, 1982, before the trial before Judge Schaller, Cook County filed a complaint in this court, alleging as a basis of federal jurisdiction that defendants, the corporations involved in the reorganization, various of their officers, directors, and their accountant, violated RICO by effecting the reorganization through a concerted pattern of racketeering. The City of Chicago filed a virtually identical complaint on May 26, 1982. These two actions were consolidated by this court’s order of June 11, 1982. The gravamen of the RICO allegations before this court is that the reorganization was the culmination of a scheme to defraud consumers of their right to receive adequate and efficient utility service at just and reasonable rates by transferring to MidCon assets that properly belonged to the utilities. The major steps in this scheme to defraud, which took place between 1977 to 1981, are alleged by plaintiffs to be that:
(1) Defendants caused the utility subsidiaries to pay excessive dividends to Peoples Energy.
(2) They then used Peoples Energy to invest these dividends in subsidiaries which were nonutilities.
(3) Meanwhile, defendants made misrepresentations to the Illinois Commerce Commission and to the public, stating that these dividends were not excessive and that their investment program w;ould benefit the utility subsidiaries and their consumers.
(4) Defendants made plans to reorganize by transferring the nonutilities to a newly incorporated MidCon Corporation without disclosing those plans to the public until January 1981.
(5) Misrepresentations were made that the reorganization would not result in higher gas rates for the customers of Peoples Gas Light and North Shore and would have no adverse effect on the financial condition of either company.
(6) Finally, in late 1981, the scheme to defraud was consummated when the reorganization took place, leaving the no-nutilities with a new corporate parent, MidCon, while North Shore and Peoples Gas Light remained subsidiaries of Peoples Energy. As a result of all the foregoing, plaintiffs allege, the utilities had become under-capitalized and the public, having been deprived of the benefits of assets generated by the utilities, has had to pay higher prices for less efficient utility services.
Plaintiffs further aver that defendants committed multiple acts of mail fraud, as prohibited by 18 U.S.C. § 1341, by using the United States mails in furtherance of their scheme to defraud. Included among these mailings were proxy statements, Form 10-K filings to the Securities and Exchange Commission, annual reports, press releases, transfers of assets, and various correspondence, including communications between officers and directors. Except for proxy statements issued by defendants when shareholder approval of the reorganization was sought, no mention of these mailings is made elsewhere in the complaint. The City and County allege that the proxy statements seeking shareholder approval of the reorganization were unconditionally certified by defendant Arthur Andersen & Co., the accountant of the corporate defendants, even though the statements determined dividends declared on common stock for MidCon on a different basis than dividends declared on common stock for Peoples. These inconsistent accounting methods, plaintiffs maintain, ‘concealed the intentionally indirect transfer of assets from Peoples Gas Light and North Shore to MidCon.’
“In addition to claiming that defendants’ alleged misconduct violated RICO, the City of Chicago appended to its complaint Counts II through IV, seeking to impose an accounting and constructive trust on the corporations and their officers for breach of their fiduciary duties under state law.
“On July 2, 1982, only four days before all claims were to be heard on théir merits, Cook County and Chicago filed motions to dismiss their counterclaims in the state proceedings voluntarily. These motions were granted by Judge Schaller. This development, however, did not terminate the participation of Chicago and Cook County in the state litigation. Despite the withdrawal of their counterclaims, they elected to remain in the state suit as intervening defendants by virtue of their answers, still on file, to the complaint for injunctive relief of Peoples Energy and its affiliates.
“Cook County and Chicago also made pretrial motions in limine on July 2, 1983. These motions sought to limit evidence accepted and findings made in the state proceedings to the issue of the jurisdiction of the Illinois Commerce Commission over the Peoples Energy reorganization. If the motions in limine were granted, evidence concerning the effect of the reorganization on the public interest, the utilities and their consumers would have been excluded from the hearing; this issue, Chicago and Cook County contended, was raised solely in the counterclaims of the other intervenors, and was irrelevant to a determination whether a permanent injunction should issue in favor of Peoples Energy and its affiliates against the Illinois Commerce Commission’s attempted exercise of jurisdiction. Judge Schaller, however, denied the motions in limine, remarking from the bench that he realized that plaintiffs were concerned about the possible collateral estop-pel effects of his judgment, but that they had remained in the suit at their own election.
“In July and August 1982, Judge Schal-ler conducted a trial in the Circuit Court of Cook County, hearing the merits of the claims for declaratory and injunctive relief of Peoples Energy and its affiliates, as well as the counterclaims of the Illinois Commerce Commission and the intervening defendant-counter-plaintiffs for declaratory judgments, a permanent injunction, the imposition of fines and other relief setting aside the Peoples reorganization. At this trial, Cook County and Chicago were afforded a full opportunity to examine and cross-examine witnesses and to introduce documentary evidence. Cook County, in fact, called its own expert witness, Pat A. Laconto, to testify on the effect of the reorganization on the cost of capital to the utilities. During the trial, which lasted 19 days, nearly 300 exhibits and the testimony of 17 witnesses were introduced into evidence. Judge Schaller heard considerable evidence concerning Peoples’ dividend, investment and acquisition practices, and the alleged transfer of utility assets to MidCon through the reorganization; moreover, evidence was introduced about the effect, if any, of the foregoing on the public interest, the utilities and their consumers.
“On November 19, 1982, Judge Schaller issued.an exhaustive 97-page opinion, setting forth the court’s findings of facts and conclusions of law, in support of an order granting the corporate defendants in this action all the relief that they requested from the state court and denying the relief sought by the ICC and the various inter-venors. The court found that the Peoples Energy reorganization was beyond the jurisdiction of the Illinois Commerce Commission because it did not involve the regulated utility subsidiaries, Peoples Gas Light and North Shore. The reorganization was effected by transferring from Peoples Energy to MidCon, both of whom are not utilities, the stock of nonutility subsidiaries. Moreover, Judge Schaller concluded, no assets of the regulated subsidiaries had been transferred in connection with the reorganization; nor was their capitalization, capital stock, or retained earnings altered as a consequence of the reorganization. Accordingly, he entered a declaratory judgment that the Illinois Commerce Commission lacked jurisdiction over the Peoples reorganization.
“The state court further granted Peoples Energy and its affiliates permanent injunc-tive relief against interference with the reorganization by the Illinois Commerce Commission, determining that declaratory relief was an inadequate legal remedy and that issuance of the injunction would prevent irreparable harm to the companies and would not disserve the public interest. In conjunction with his determination that the public interest would not be disserved by issuance of the injunction, Judge Schaller made the following specific findings of fact:
(1) The reorganization has not impaired the gas supply of the two regulated utility subsidiaries, Peoples Gas Light and North Shore, or their ability to service their respective customers.
(2) Further, the reorganization has not impaired the financial viability of the utility subsidiaries or their ability to raise capital.
(3) The payment by the utility subsidiaries to Peoples Energy of approximately 85% of their net income as dividends was neither excessive, illegal, or improper.
(4) Neither the decision of Peoples Energy not to reinvest these dividend payments in its utility subsidiaries nor the investment of these monies in nonutility subsidiaries which were eventually transferred to MidCon was illegal or improper.
(5) Moreover, the Illinois Commerce Commission may not lawfully consider the earnings and assets of nonutility businesses in setting rates for utility businesses. Therefore, before the reorganization, the Commission could not look to the financial viability of Peoples Energy or any of its nonutility subsidiaries in setting rates for Peoples Gas Light and North Shore.
(6) Further, the utility subsidiaries and their consumers did not have any right to claim benefits in Peoples Energy’s investment program in its nonutilities.
(7) Neither the dividend payout policy, nor Peoples Energy’s reinvestment program in its subsidiaries, nor its nonutility acquisition program caused any damage to consumers by adversely affecting either rates or quality of service.
(8) Consequently, no harm was imposed on the utilities or their consumers as a result of the transfer of the nonutility subsidiaries from Peoples Energy to MidCon.
The same findings that supported the grant of injunctive relief in favor of Peoples Energy and its affiliates also provided grounds for denying the relief sought by the Commission and the intervenors who had counterclaimed. Specifically, Judge Schaller noted that injunctive relief was being denied the intervening defendant-counterplaintiffs because, given the court’s findings, they had not established injury. At one point in his decision the judge observed that, despite the withdrawal of their counterclaims, Cook County and Chicago had ‘remained in the case as party defendants] with all [the] rights of partfies] and participated fully in the trial on the merits.’
County of Cook v. MidCon Corporation, 574 F.Supp. at 905-08.
II.
The district court concluded that the principle of collateral estoppel bars plaintiffs’ RICO suit because the propriety of each element of the alleged scheme to defraud was previously decided in the state court reorganization proceedings. Under collateral estoppel principles (or “issue preclusion”), “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). Generally, in determining the preclusive effect of a prior state court judgment, we give the same full faith and credit to the judgment that it would receive in the courts of the state from which the judgment emerged. 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. at 96, 101 S.Ct. at 415. Plaintiffs argue that state collateral estoppel principles cannot be invoked to bar relitigation of issues essential to a claim that is within the exclusive jurisdiction of the federal courts, and thus, since in their view RICO claims are exclusively federal, we may not apply Illinois preclusion law to bar this federal suit.
It is by no means clear that federal courts have exclusive jurisdiction to hear RICO claims. However, even assuming that RICO jurisdiction is exclusively federal, the Supreme Court’s recent decision in Marrese v. American Academy of Ortho-paedic Surgeons, — U.S.-, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) makes it clear that this circumstance would not eliminate the need for examining state preclusion law to determine the collateral estoppel effect of a previous state court judgment. In Marrese, the Court interpreted its previous decision in Kremer v. Chemical Construction Corporation, 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), to mean that “absent an exception to [the full faith and credit statute, 28 U.S.C. § 1738], state law determines at least the issue preclusive effect of a prior state judgment in a subsequent action involving a claim within the exclusive jurisdiction of the federal courts.” Marrese, 105 S.Ct. at 1332. Thus, our task is first to refer to Illinois law to determine the preclusive effect of issues that were decided in the state litigation. Only if we conclude that state law would bar relitigation of any or all issues material to this federal action must we then consider if an exception to 28 U.S.C. § 1738 should apply. See Marrese, 105 S.Ct. at 1333. Therefore we now turn to an examination of the application to this suit of Illinois collateral estoppel principles.
III.
In general, collateral estoppel precludes relitigation of issues in a subsequent proceeding when (1) the party against whom the estoppel is asserted was a party to the prior adjudication, (2) the issues which form the basis of the estoppel were actually litigated and decided on the merits in the prior suit, (3) the resolution of the particular issues was necessary to the court’s judgment,, and (4) those issues are identical to issues raised in the subsequent suit. See, e.g., Whitley v. Seibel, 676 F.2d 245, 248 & n. 1 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982); Raper v. Hazelett and Erdal, 114 Ill.App.3d 649, 70 Ill.Dec. 394, 449 N.E.2d 268 (1983). We first turn to plaintiffs’ central contention that the district court erred in determining that the issues resolved by the state court’s findings in the reorganization litigation are identical to the issues raised in this federal RICO suit.
As the district court noted, the provisions of RICO which plaintiffs allege were violated by defendants prohibit, inter alia, persons associated with an enterprise involved in interstate commerce from conspiring to conduct, or conducting, the affairs of such an enterprise through a “pattern of racketeering activity.” See 18 U.S.C. §§ 1962(c) and (d). A pattern of racketeering activity may be demonstrated by the existence of two or more predicate acts, see 18 U.S.C. § 1961(5), which may be acts that are prohibited under the federal mail fraud statute. See 18 U.S.C. § 1961(1). The basic elements of a mail fraud offense are (1) a scheme to defraud and (2) use of the mails for the purpose of executing the scheme. E.g., Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); United States v. Azzarelli Construction Co., 612 F.2d 292, 298 (7th Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980). Here, plaintiffs claim that defendants conspired to defraud consumers of Peoples Gas and North Shore by fraudulently directing revenues received as a result of rate increases granted to those companies during the years 1977 through 1981 to finance, develop and capitalize MidCon. The steps in this scheme are alleged to have begun with intentional misrepresentations made in order to obtain the rate increases. Thereafter, plaintiffs contend, the utilities made excessive dividend payments to Peoples Energy, which instead of reinvesting capital in the utilities chose instead to invest capital in high-risk, nonutility ventures. When the ventures proved profitable, defendants implemented the reorganization in which Peoples Energy divested itself of the nonutilities and spun them off to MidCon.
The district court concluded that:
[Although recast to fit RICO, the allegations that are at the core of the ‘scheme to defraud’ pleaded by Chicago and Cook County, already have been adjudicated adversely to them in the Circuit Court of Cook County. That court, too, concerned itself with the legality, propriety, and impact of the corporate defendants’ reorganization as well as the legality, propriety, and impact of their dividend payout and investment practices which preceded the reorganization.
County of Cook v. MidCon Corporation, 574 F.Supp. at 918. We need not repeat here each of the state court determinations that the district court found constituted decisions on issues also presented in this ease. We have carefully reviewed the decision of Judge Schaller, who presided over the state court proceedings, and conclude that the district court correctly characterized the impact of the findings made in that decision. See County of Cook v. MidCon Corporation, 574 F.Supp. at 918-19. Judge Schaller specifically found that the dividend payments made by the utility subsidiaries were neither excessive, nor illegal nor improper in any way. He also found that defendants’ decision to invest those dividend revenues in the nonutility subsidiaries, instead of the utilities, was legal and proper, and did not adversely affect either the quality of service rendered or the rates charged by the utilities. Finally, Judge Schaller found that Peoples Energy’s divestiture of the nonutilities to MidCon was outside the jurisdiction of the Illinois Commerce Commission, and, in any event, did not impair the financial viability of the utility subsidiaries, their ability to raise capital or serve their customers, or in any other respect cause any damage to the utilities or their consumers. Given these findings, we can reach no other conclusion but that the district court correctly determined that all the essential features of the alleged scheme to defraud were already considered, and found to be without merit, in the state reorganization proceedings.
But the plaintiffs contend that the district court paid insufficient attention to their central allegation that the rate increases obtained between 1977 and 1981, not the subsequent dividend payments, investment policies and reorganization, form the core of plaintiffs’ contentions that defendants engaged in a scheme to defraud. Plaintiffs insist that the district court erred by characterizing the beginning of the scheme as the payout of dividends, when instead, “the only misrepresentation controlling to [defendants’] scheme is the misrepresentation that rate increases were necessary to provide adequate and efficient utility service when they were actually being diverted for the purpose of capitalizing MidCon,” an issue which plaintiffs contend was never considered by the state court. County Br. at 26.
First, the nature of the misrepresentation as to rate increases alleged by plaintiffs is not clearly delineated. They appear to be saying not that there was no conventional basis for an increase (such as a need to earn an appropriate rate of return on a rate base) but rather that, whatever the conventional basis, the funds generated were not reinvested in the utility subsidiaries but instead were the source of asset diversion to MidCon. Thus the focus here is not so much on the falsity of the information on which the increases were based as on an alleged failure to disclose additional information about the intended eventual disposition of the revenues generated. It is therefore not a simple matter to disentangle fraud about the need for increases from fraud in diverting enhanced revenues to MidCon.
Moreover, the record indicates that plaintiffs’ allegations regarding fraudulently obtained rates were at all times a part of the state reorganization case, and Judge Schal-ler made specific findings relating to those allegations. The fact that Judge Schaller did not refer to the precise language that plaintiffs now employ to describe the rate increases as fraudulently obtained does not mean that the issue of the propriety of the increases decided in the state suit is not “identical” to the issue presented here. As plaintiffs note, the central inquiry is whether the same question raised in a subsequent suit was actually litigated and decided in the prior suit, which turns on the determination whether the issue was properly placed in dispute and was resolved by the trier of fact. See Continental Can Company v. Marshall, 603 F.2d 590, 596 (7th Cir.1979). Not only the prior court’s decision, but also the pleadings and record in that suit may be considered. See Scho-enbrod, v. Rosenthal, 36 Ill.App.2d 112, 120, 183 N.E.2d 188, 192 (1962).
Judge Schaller’s decision notes that several intervening parties opposed to the reorganization alleged that “the reorganization might deprive ratepayers of certain assets previously owned by [the utilities, Peoples Gas and North Shore] and allegedly included in their rate bases.” See Peoples Energy Corporation v. Illinois Commerce Commission, Nos. 81 CH 6768 and 81 CH 7199 (consolidated) (Cir.Ct. Cook County) (Findings of Fact, Conclusions of Law, and Order, entered Nov. 19, 1982) (hereafter “State Decision”) at 6-7. The counterclaims of Cook County and the City of Chicago also alleged that certain assets previously included in the utilities’ rate bases had been improperly transferred to Mid-Con as a result of the reorganization. State Decision at 8-9. Even after the County and City dropped their counterclaims, Judge Schaller noted that he had denied these parties’ motions to exclude evidence pertaining to these issues, “since the counterclaims of other parties continued to present the issues as to the effect of reorganization upon rates, quality of service, and the public interest, and as to whether the reorganization deprived Peoples Gas Light and North Shore of certain assets.” State Decision at 8-9. Judge Schaller exhaustively reviewed the history and development of all the companies at issue, beginning with the charter granted by the Illinois legislature to Peoples Gas in 1855, through the reorganization and its effect on rates subsequently charged. Judge Schaller then made specific findings which among other things responded to the claim that assets previously included in the utilities’ rate bases were improperly transferred to MidCon. His ultimate and crucial finding was that the reorganization “did not involve the transfer of any of the assets of [the utilities], and none of these assets was transferred to implement the reorganization.” State Decision at 72. Moreover, Judge Schaller found that the Illinois Commerce Commission may not lawfully consider the earnings and assets of nonutility businesses in setting rates for utility businesses and neither the dividend payment policy, nor the reinvestment policy, nor the nonutility acquisition program caused any damage to consumers, by adversely affecting either rates or quality of service. Neither the utility subsidiaries nor their consumers had any right to claim benefits in the nonutility investments. State Decision at 77-78. Nor did the reorganization cause the filing of increased rate requests or cause any damage to the utilities or their consumers. State Decision at 77-79. Finally, Judge Schaller concluded that certain intervenors’ claims that ratepayers had been deprived of the benefits of certain utility assets had been “specifically refuted” and so no injury had been demonstrated. State Decision at 81.
We conclude from the record as a whole that plaintiffs’ allegations that rate increases were fraudulently obtained are not different from the issues pertaining to the rate increases decided in the state suit. In essence, plaintiffs are attempting to make their allegations that the rate increases were fraudulently obtained sound different from the issues resolved in the state court suit by arbitrarily separating these allegations from those related to the other events leading up to and including the reorganization. Plaintiffs concede that the dividend payouts, investment program and reorganization were each found to be perfectly proper but say that these events somehow became improper in toto because the funds used to finance these steps were fraudulently obtained through rate increases. But the rate increases, in turn, are only alleged to be fraudulent because the dividend payouts, investment program and reorganization program were later undertaken. We think Judge Schaller’s findings that none of the defendants’ actions diverted assets from, or in any other way damaged, the utilities, that the earnings and assets of the nonutility subsidiaries were irrelevant to rate determinations and that each of the steps in defendants’ alleged scheme to defraud were legal and proper, and did not affect rates, are sufficient to demonstrate that plaintiffs’ current focus on the rate increases is unavailing.
Plaintiffs make similar arguments in an attempt to show that their allegations that defendants made implicit misrepresentations by failing to disclose their intentions to take the various steps leading to the reorganization are materially different from the issues relating to the propriety of those steps decided in the state court suit. For example, plaintiffs argue that Judge Schaller never explicitly considered whether representations about the dividend payouts were fraudulent. But, as the district court explained, “since the state court reasoned that the dividends were not excessive [defendants’ statements that the dividends were not excessive], their truth sustained, cannot in the trial of these cases be found fraudulent by a jury or this court.” County of Cook v. MidCon Corporation, 574 F.Supp. at 918. Each of the plaintiffs’ general accusations to the effect that defendants misrepresented certain facts suffers from this same sort of defect.
Plaintiffs argue that an unfavorable finding in a prior suit concerning an act that formed part of a fraudulent scheme, made without consideration of misrepresentations related to that act or the fraudulent nature of the scheme as a whole, does not collaterally estop relitigation of that part of the scheme in a subsequent suit. See Northern Trust v. Essaness, 103 F.Supp. 954 (N.D.Ill.1952); Harding Co. v. Harding, 352 Ill. 417, 186 N.E. 152 (1933); Schoenbrod v. Rosenthal, 36 Ill.App.2d 112, 183 N.E.2d 188 (1962). Moreover, acts which may be legal or innocent in and of themselves can be part of an activity illegal overall. See, e.g., United States v. Ranney, 719 F.2d 1183, 1187 n. 7 (1st Cir.1983). Further, plaintiffs insist that a duty to disclose material information need not be based on a statute or regulation, but mere concealment of facts from a public body, in order to receive a benefit from that body, may be evidence to support a mail fraud conviction. See United States v. Mandel, 591 F.2d 1347 (4th Cir.), decision after rehearing en banc, 602 F.2d 653 (1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980).
Nevertheless, while plaintiffs’ propositions of law are no doubt accurate, they do not advance plaintiffs’ argument. First, as explained above, all of plaintiffs’ allegations of fraud pertain to defendants’ failure to disclose their intentions to take various actions. But given the state court’s findings a) that those actions were legal and proper, and b) that neither the public nor the ICC could properly be concerned with those actions and c) that none of the actions caused any injury to the utility companies, the public or the ICC, we do not see on what basis any duty to disclose could arise. Where the prior state court determinations preclude a finding that any component part of the alleged scheme was fraudulent, it is difficult to imagine how the scheme “as a whole” can be fraudulent. Moreover, contrary to plaintiffs’ assertions, the state court did consider the “scheme” “as a whole,” and concluded that there was no impropriety. In sum, despite plaintiffs’ efforts to distinguish the parts in light of the whole, we agree with defendants that the alleged diversion of capital or assets and the component steps of that plan, which are at the core of plaintiffs’ RICO charges, were equally important in the state court litigation. Therefore we conclude that the district court’s determination that these issues were actually litigated and decided in the state litigation is correct.
Plaintiffs also contend that Judge Schal-ler’s findings in the state suit related to the propriety of events up to and including the reorganization should not be given collateral estoppel effect because those findings were not necessary to reach the decision in that case. In particular, plaintiffs stress that the focus of the state suit was the question whether the ICC had jurisdiction over the reorganization, which depended on such issues as whether Peoples Energy was a public utility under Illinois law and whether the reorganization involved transactions between public
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_genresp1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
George NASSAR, Petitioner-Appellant, v. Douglas VINZANT, Superintendent, etc., Respondent-Appellee.
No. 74-1429.
United States Court of Appeals, First Circuit.
June 26, 1975.
Certiorari Denied Oct. 14, 1975.
See 96 S.Ct. 202.
Lois M. Lewis, West Newton, Mass., by appointment of the Court, for petitioner-appellant.
Barbara A. H. Smith, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for respondent-appellee.
Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Appellant, George H. Nassar, was convicted in the Massachusetts Superior Court for the first degree murder of Irvin Hilton. On appeal the judgment was vacated by the Supreme Judicial Court, which held that evidence of Nassar’s pri- or criminal record impermissibly had been allowed to reach the jury. Commonwealth v. Nassar, 351 Mass. 37, 218 N.E.2d 72 (1966). The Commonwealth retried Nassar, and he was again convicted. This judgment was upheld by the Supreme Judicial Court, Commonwealth v. Nassar, 354 Mass. 249, 237 N.E.2d 39 (1968), and the Supreme Court denied his petition for a writ of certiorari, Nassar v. Massachusetts, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969). In 1974, Nassar filed a petition for a writ of habeas corpus in the district court, 28 U.S.C. § 2254, alleging that the identification procedures utilized in the course of the investigation of Hilton’s murder served to deny him his rights to a fair trial under the sixth and fourteenth amendments. The district court, without holding an evidentiary hearing on appellant’s contentions, see 28 U.S.C. § 2254(d), granted appellee’s motion to dismiss the petition. After obtaining the requisite certificate of probable cause, id. § 2253, Nassar filed the instant appeal.
Analysis of appellant’s claim requires that we sketch relevant portions of the evidence offered at his trial:
On September 29, 1964, at approximately 3:45 p. m., Mrs. Rita Buote and her daughter, Diane, drove into a filling station in Andover, Massachusetts, intending to purchase gasoline. In the station, near the lubritorium, the proprietor Irvin Hilton was on his knees looking up at a man who held a gun in his hand. This man shot Hilton, who fell over on his side. The man then fired three more shots into Hilton’s body.
Hilton’s assailant walked rapidly toward the Buote vehicle, approaching the door on the driver’s side. Mrs. Buote locked the car door, preventing the man from opening it. The man then pointed the gun at Mrs. Buote and twice pulled the trigger, but the gun did not fire. The man began banging on the window and attempted to get the door open. Failing this, he stood for a moment and looked toward the highway. Both Buotes crouched below the seats of their vehicle, and when they arose a short time later the assailant had gone.
These events were also observed by two men who had driven into the filling station while Hilton’s murder was in progress. Their vehicle was more distant than that of the Buotes, however, and owing to this and to their interest in “getting out of there,” these men were unable to provide more than a general description of the assailant.
They did observe that the murderer departed the station in what they described as a black automobile bearing Virginia license plates with the number 960-947. This information was important in view of another witness, Ruth Watson, who testified that approximately 3:15 p. m. on the afternoon of September 29, 1964, she had seen a car fitting this description on a road in And-over close by the Hilton filling station. Watson had not testified at Nassar’s first trial, and her taking the stand at the second caught the defense somewhat unprepared. After obtaining a short continuance to check out her story, however, and after attempting to shake her story, appellant’s counsel stated that he was satisfied that Watson had seen the vehicle as she described.
Police investigation of the Hilton murder focused upon the Buotes, as they were the only persons known to have observed the assailant sufficiently to identify him. The police obtained descriptions of the assailant from both Mrs. Buote and Diane. On the night of the murder each was shown a spread of photos, not including any of appellant, but they could not select any of these as being that of the murderer. The next day Mrs. Buote assisted an Andover police officer in the preparation of a sketch of the man she had seen. This sketch, which Mrs. Buote agreed was “a fair likeness” of the assailant, was then shown to Diane. The sketch was published in the newspapers the following day, with information that the police were looking for a man resembling the sketch.
A Lawrence, Massachusetts, police officer, who was on station duty the night of September 30 to October 1, saw this sketch in the October 1 edition of a Lawrence newspaper. The officer was in no way connected with the murder investigation being conducted by the Andover police, and had no training as a detective. On a “hunch”, he selected a photo of appellant from police files and showed it to his superiors. A bit later that morning the officer and another member of the Lawrence police force, without any attempt to contact the Andover police concerning the Hilton investigation, took this photo of Nassar to the Buote home. Arriving there at approximately 7 a. m., they displayed the photo, a “mug shot” portraying appellant in both profile and fullface views, to Mrs. Buote. Initially she wasn’t sure, but upon seeing the fullface portion in better light she stated, “That’s him.” Later, Diane was brought into the room and was separately shown the photograph. She also identified it as being a picture of the man they had seen murder Irvin Hilton. The two Lawrence officers subsequently delivered this photo of Nassar to the And-over police. Sometime later that day, two Andover policemen went to the Buote residence and showed both Mrs. Buote and Diane, separately, a number of pictures. Each picked out the same photo of Nassar that they had identified early that morning during the visit from the Lawrence police.
At the trial Mrs. Buote and Diane each identified appellant as the man they had seen shoot Irvin Hilton. In addition, there was testimony presenting for the jury the Buotes’ out-of-court identifications of Nassar’s photo under the circumstances above described. Ruth Watson testified that the man she had seen driving the car with the Virginia license plates shortly before the murder was George Nassar. The foregoing, with the exception of some testimony tending to a show a possible motive for robbery, constituted the entire case for the prosecution.
Appellant contends that his identification by the Buotes was the result of impermissible police suggestion violative of his constitutional rights. He argues that showing the Buotes a single photo shortly after they had arisen necessarily implanted in their minds the suggestion that the police thought the man in the photograph had committed the crime, and that this so tainted the validity of the Buotes’ identifications as to require reversal of his conviction. This claim was fully considered by the Supreme Judicial Court on Nassar’s second direct appeal, and that court rejected it, as did the district court below. We agree with these conclusions, while concurring in the Supreme Judicial Court’s criticism of the actions of the two Lawrence police officers. .>
Appellant’s claim is to be tested against the requirement that a conviction will be set aside “only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of . misidentification.” See Simmons v. California, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Neil v. Big- gers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)
We can agree that the arrival, at 7 a. m., of two police officers bearing a. single photograph carries some suggestive connotations. But we do not think those facts sufficient in themselves to support the conclusion that appellant’s conviction must be vacated. Insofar as cases such as United States v. Fowler, 439 F.2d 133 (9th Cir. 1971), may be read to announce a per se rule condemning as constitutionally infirm all evidence derived from single photo identifications, see Workman v. Cardwell, 338 F.Supp. 893, 895-96 (N.D.Ohio 1972), aff’d, 471 F.2d 909 (6th Cir. 1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2748, 37 L.Ed.2d 161 (1973), we do not follow them. Single photo identifications do, indeed, present so serious a danger of suggestiveness as to require that they be given extremely careful scrutiny, but beyond stating this, we cannot provide a rule of thumb, as every suggestive identification case must be tested under the “totality of the circumstances” standard of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Simmons, supra 390 U.S. at 383, 88 S.Ct. 967; Neil, supra 409 U.S. at 196, 93 S.Ct. 375.
The circumstances surrounding the Buotes’ selection of appellant’s photo were less conducive to misidentification than those in Fowler and United States v. Workman, 470 F.2d 151 (4th Cir. 1972). Since the Buotes had already, been shown a spread of photographs after the crime, the showing of one more photo on the morning of October 1 was to some extent a continuation of an ongoing process of looking through police photos. We held a somewhat similar train of events “not . . . unduly suggestive” in Cooper v. Picard, 428 F.2d 1351 (1st Cir. 1970). This is not to say that viewing the earlier photos did more than reduce the suggestive force inherent in the Lawrence officers’ actions; it does not by itself remove the problem. But, weighing this factor with those which tend to support the validity of the Buote identifications, we are of the opinion that the likelihood of misidentification was not so great as to justify invalidation of appellant’s conviction.
Both Buotes had seen the murderer at close range, in good light, and in a situation likely to fix his image firmly in their minds. They did not select any photos from the spread presented to them the night of the murder, indicating both that they had a sufficiently good recollection of the assailant’s features to distinguish him from others and that they were not overly predisposed to produce a suspect for the police. In her description to the police Diane described the murderer as having something unique about his eyes, a feature which her mother had not observed. This tends to show both the extent of Diane’s observation of the man and her ability to recall what she had seen. Mrs. Buote’s ability to construct a sketch of the murderer the next day shows to some extent the detail of her recall; and as this was introduced into evidence along with the photo which the Buotes later identified, the jury could compare the sketch, the photo, and appellant’s features as seen in the courtroom in order to assess the accuracy of the Buote identifications. Finally, the identification which the Buotes made occurred only two days after the crime at a time when their memory of the assailant should still have been relatively fresh.
All of the above are factors which the Supreme Court has indicated are to be considered in evaluating the likelihood of misidentification. Neil, supra 409 U.S. at 199-200, 93 S.Ct. 375. In addition, they serve to distinguish this case from Kimbrough v. Cox, 444 F.2d 8 (4th Cir. 1971), upon which appellant heavily relies. There, two weeks after the crime, the witnesses were shown photos only of' the defendant, in circumstances which the court of appeals said made it “obvious that Kimbrough was the only suspect.” 444 F.2d at 10. In the instant case Mrs. Buote testified that the Lawrence officers asked only if she would look at the photo they brought with them. On cross-examination defense counsel and Mrs. Buote had the following colloquy:
“Q. When the officer presented to you one photograph did you suspect or believe that this man had been singled out for some reason?
A. No.
Q. You did not?
A. No.
Q. You didn’t see anything at all odd about it?
A. No.
Q. And did you make a decision there and then from the photograph alone that this was the man you had seen?
A. Did I make a decision then?
Q. Yes.
A. That was the picture of the man that I saw — ”
After she had identified appellant’s photo as the murderer, Mrs. Buote called for Diane, who was asleep, to come down. Mrs. Buote testified that she introduced Diane to the officers and then left the room without indicating anything to her daughter concerning her identification of the photo. Diane’s testimony confirmed this, and she said that the officers had not said anything to her about the picture, that they just presented it to her for examination. Asked whether she thought at the time that the officers had caught the murderer, Diane replied she could not remember.
The version of events that morning thus painted by Diane and her mother was consistent with the testimony of the two Lawrence police officers. Thus, the record establishes that other than in their use of the single photo (and possibly in arriving so early), the officers did nothing else which could be characterized as impermissibly suggestive. As we reject appellant’s contention that these defects alone, viewed against all the circumstances of the case, created “a very substantial likelihood of misidentification,” we think the petition for habeas corpus was rightly dismissed.
Affirmed.
. An automobile fitting this description was later found abandoned. Investigation revealed that it had been stolen the morning of the murder.
. The Simmons test, devised to deal with the possibility of prejudice from an in-court identification of a defendant following suggestive police procedures, focused upon the danger of “irreparable misidentifications.” The Neil Court said that “with the deletion of ‘irreparable’ [the Simmons formulation] serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.” 409 U.S. at 198, 93 S.Ct. at 381 (footnote omitted). As both types of identification evidence were presented to the jury in this case, both standards would seem applicable. However, since we conclude that the procedures here did not create a very substantial likelihood of misidentification, there is no need to go beyond the Neil standard.
. Police attention had been drawn to Kimb-rough through an accusatory phone call from his estranged wife, who had supplied the photos used in the identification. The court, describing this as “the very unusual way in which the police focused upon Kimbrough,” felt that his identification was therefore additionally suspect because “the decision to present Kimbrough as the only suspect was based on rather flimsy suspicion.” Appellant argues that the Lawrence officer’s “hunch” selection of his photograph can be equated with Mrs. Kimbrough’s • actions, but even if this were so nothing has been suggested to us indicating that this factor could have affected the accuracy of the Buotes’ identification of that photo.
. Appellant appears to make a separate argument that the refusal by the trial court to grant his request for a voir dire prior to admitting the identification testimony of the Buotes constitutes a ground for reversing his conviction. While the holding of a voir dire upon a claim of suggestive identification would have been eminently sensible practice to prevent the jury from hearing material which might later be determined inadmissible, the failure to grant such a request does not on this record amount to constitutional error. The facts relevant to the suggestiveness of the display could be explored at the trial in the presence of the jury without undue prejudice to Nassar; and the state court and now the federal courts are in a position to rule on the constitutional claim as if a hearing had originally been held outside the jury’s presence.
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_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SCOTT AND FETZER COMPANY (the Kirby Company Division), Plaintiff-Appellee, v. Virgil L. DILE, Individually and Virgil L. Dile and Barbara Jolene Dile, husband and wife, dba Railroad Freight, Railroad Salvage and Discount Freight; and T.H.E. California Corporation, an Arizona Corporation, dba Railroad Freight, Defendants-Appellants.
Nos. 79-3314, 79-3740.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 12, 1981.
Decided April 27, 1981.
David N. Ramras, Phoenix, Ariz., for Dile.
Barry L. Springel, Cleveland, Ohio, on brief; Irving Berger, Jones, Day, Reavis & Pogue, Cleveland, Ohio, argued, for Scott & Fetzer Co.
Before CHOY and REINHARDT, Circuit Judges, and KELLEHER, District Judge.
The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.
CHOY, Circuit Judge:
This is a consolidated appeal from a preliminary injunction issued by the United States District Court and from a subsequent order finding appellant Virgil Dile in civil contempt. We reverse the issuance of the injunction, vacate the contempt judgment and remand for further proceedings.
I. Facts
Appellee Scott and Fetzer Company, the Kirby Company Division (“Kirby”), is engaged in the business of manufacturing and distributing electric vacuum cleaners and parts and accessories therefor. Appellant Virgil L. Dile (“Dile”), a resident of the State of Arizona has been engaged since 1965 or 1966, in the retail sale of various consumer products, both individually and through corporations owned or controlled by him. He has done business under various trade names.
Kirby sells its products to “authorized factory distributors” pursuant to written agreements which include a license to use Kirby’s trademarks. Although there appears to be some dispute as to whether Dile was ever a factory authorized distributor of Kirby, he was not so authorized at all times relevant in this action.
Over the years Kirby has had written commitments with purchasers of vacuum cleaners to completely rebuild vacuum cleaners sold to them for a specified maximum fee, on condition that only the original purchasers request the rebuilding. It is not the company’s policy to rebuild and sell any used Kirby vacuum cleaners.
Dile has been engaged in the retail sale of rebuilt vacuum cleaners bearing Kirby’s trademark since 1971 or 1972. This case arose from Dile’s sale of these rebuilts and specifically from his advertising in connection with such sales.
Kirby brought suit against Dile alleging trademark infringement and unfair competition. The district court held a show cause hearing on March 21 and 22, 1979 on Kirby’s request for a preliminary injunction. On April 13,1979, the district court entered a preliminary injunction, part 3 of which required Dile to include in any advertising which used the word “Kirby” (a registered trademark owned by Kirby) a disclaimer of any affiliation with Kirby. Dile appealed from the preliminary injunction.
On May 9, 1979, Kirby filed a motion in the district court to hold Dile in contempt for violating the disclaimer injunction. Kirby requested that as partial relief for the violation the district court bar any use of the word “Kirby” in Dile’s advertising. The district court issued an order to show cause and held a hearing on the contempt motion on May 31, 1979.
On July 12, 1979, the district court entered an order in which it (a) held Dile in civil contempt, (b) ordered Dile to pay the expenses incurred by Kirby in the contempt proceeding, (c) ordered Dile to pay a fine of $500, and (d) ordered the cessation of all use of the word “Kirby” in any manner whatsoever in Dile’s advertising.
On August 3, 1979, Dile filed a motion that the district court reconsider the July 12 order with respect to the contempt finding, the $500 fine, and the non-use injunction. On October 10, 1979, after reconsideration, the district court entered an order (a) affirming the contempt finding, (b) striking the $500 civil contempt fine, and (c) denying Dile’s request to strike the non-use injunction. On November 8,1979, Dile filed a notice of appeal from the October 10 order. On January 17,1980, this court consolidated this appeal with the appeal from the original preliminary injunction.
II. Appeal from the Preliminary Injunction
A. Order to Show Cause Hearing
This action was commenced on March 18, 1978. The order to show cause hearing on Kirby’s request for a preliminary injunction was not held until March 21, 1979. During this period of more than one year, extensive discovery took place.
At the order to show cause hearing Kirby called 23 witnesses in support of its claim. Twenty of the 23 witnesses were not listed as witnesses by Kirby in its answers to interrogatories. All 20 were permitted to testify over Dile’s objection. In addition, of the 16 persons listed by Kirby as witnesses in the answers to interrogatories, Kirby called only three to testify at the hearing.
One of the undisclosed witnesses was an expert witness, John Lackner, a Kirby plant manager. His testimony concerned a'Kirby rebuilt that was sold by Dile to an investigator hired by Kirby. He testified that a substantial number of components of the rebuilt were not genuine Kirby parts and as to the safety hazards posed by the examined machine. He was allowed to testify despite the fact that his name was not listed in response to an interrogatory which expressly asked whether any experts had been retained by Kirby. Two of the 20 witnesses not listed were process servers. Their testimony was not used by Kirby as part of its case in chief. One witness was the private investigator hired by Kirby. Other witnesses included persons who had purchased rebuilt Kirby vacuum cleaners from Dile believing them to be new Kirby products.
Kirby also offered 51 exhibits in support of its claim. Twenty-six of the 51 exhibits were not listed as exhibits in Kirby’s answers to interrogatories. All of the exhibits were received over Dile’s objection.
Dile argues that the district court abused its discretion by permitting Kirby, over objection to call the 20 witnesses to testify at trial and to introduce the 26 exhibits when notice of their identity and intention to use them was first given after trial began and when the witnesses and exhibits were not listed in response to interrogatories. We agree. These actions by the district judge denied Dile his right to prepare effective cross-examination and to present rebuttal witnesses and exhibits. We note that the need for preparation for effective cross-examination is even more compelling where expert testimony is involved.
In addition it appears that Kirby used these undisclosed witnesses and exhibits to support a previously undisclosed theory of the case. Kirby’s theory of the case, as shown in its answers to interrogatories, was that Dile committed trademark infringement and unfair competition by using the trademark “Kirby” in his advertising and by making various alleged misleading representations in his advertising and sales receipts. At the hearing Kirby first revealed a new theory of the case; that is, that Dile allegedly engaged in trademark infringement and unfair competition by retaining the trademark “Kirby” on the rebuilt vacuum cleaners where such rebuilt vacuum cleaners were not assembled in their entirety by Kirby with “genuine” Kirby parts (manufactured by or for Kirby). In addition, at the hearing Kirby first raised an issue concerning the quality of Dile’s rebuilt Kirby vacuums apparently arguing that Dile’s rebuilt Kirby vacuums were inferior to Kirby’s new vacuums and, thus, by retaining the “Kirby” trademark on such rebuilt vacuums Dile was injuring Kirby’s good name and reputation.
The Supreme Court has noted that
Rules 26 to 37, the discovery-deposition provisions of the Federal Rules, were intended to insure “proper litigation”, Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), by making the “trial less a game of blind-man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed. 1077 (1958).
Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963). Rule 26(e) of the Federal Rules of Civil Procedure specifically requires supplementation of responses to interrogatories. The rule states in relevant part:
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement' his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
Kirby explains its failure to supplement by maintaining that it was not until shortly before the March order to show cause hearing that it discovered the trademark infringement and unfair competition associated with the rebuilt vacuums. By a letter to Dile’s counsel dated March 8, 1979 (which was read into the record), Kirby offered to supplement its prior interrogatory answers to identify the witnesses and exhibits it intended to use at trial. Since Kirby had made a request for supplementation to Dile, Kirby’s offer to supplement was predicated on a simultaneous supplementation. Dile never responded to this letter and Kirby claims that if he had he would have received the information that disclosed Kirby’s position with respect to the rebuilts. This letter indicated nothing about a new theory in the case, however, and furthermore Rule 26(e) of the Federal Rules of Civil Procedure does not require such a simultaneous supplementation of answers to interrogatories.
While the district court has wide discretion concerning discovery and evidentiary issues at trials and hearings, this discretion is not limitless.
A rule of thumb as to the meaning of the abuse of discretion standard provides that the trial court’s exercise of discretion should not be disturbed unless there is “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”
Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).
We find that, considering all the factors and circumstances of this case, the district court’s actions constituted an abuse of discretion.
B. Dile’s Deposition
A dispute arose between the parties over the deposition of Kenneth A. Hook, Kirby’s in-house counsel, and over Kirby’s noticing of a second deposition of Dile. Dile failed to appear for the deposition and the district court held him in contempt and precluded him from testifying at the order to show cause hearing as a punishment for contempt pursuant to Rule 37 of the Federal Rules of Civil Procedure. Dile contends that this order constituted an abuse of the district court’s discretion. Our holding on the previous issue makes it unnecessary to review this order.
III. Appeal from Contempt Finding and Order Modifying the Injunction
A. Modification of Injunction
Due to our reversal of the order granting the preliminary injunction, it is unnecessary for us to reach the issues concerning the order modifying the injunction. Since the injunction itself has been invalidated, the modification also falls.
B. Contempt Judgment
The district court found Dile to be in civil contempt. Contrary to the general rule regarding criminal contempt, a civil contempt judgment may fall if the underlying injunction is invalidated. The Supreme Court stated in United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947), that “[t]he right to remedial relief falls with an injunction which events prove was erroneously issued.”
Several other circuits have held specifically that a civil contempt judgment is invalidated if the underlying injunction is determined to be invalid. These courts have distinguished between “coercive” civil contempt and “remedial” civil contempt in their analysis, but have come to the conclusion that neither can survive the invalidation of the underlying injunction.
The order finding Dile in contempt was clearly “civil” contempt. Kirby asked that Dile be held in criminal contempt but the court specifically refused to so hold. In addition, it appears that the contempt order is of the “remedial” nature as its purpose was to compensate Kirby for the costs incurred in the contempt hearing (the court originally fined Dile $500 but, on Dile’s request to reconsider, changed the order to require a $500 fine upon the next violation). The contempt judgment is for remedial purposes and, therefore, must fall as a result of our decision invalidating the underlying injunction. See United States v. United Mine Workers, supra, at 295, 67 S.Ct. at 696.
IV. Conclusion
Under all the facts and circumstances of this case, we find that the district court abused its discretion in allowing Kirby to introduce at the hearing the undisclosed witnesses and exhibits and to use a new theory of the case. The granting of the preliminary injunction is REVERSED, the contempt judgment is VACATED, and the case is REMANDED for further proceedings.
. Dile does not rebuild the Kirby vacuum cleaners himself but rather purchases rebuilt Kirby vacuum cleaners from the Palomar Vacuums Company.
. Paragraph 3 of the preliminary injunction provides:
3. Defendant shall include ih any advertisement and/or commercial which uses the word “Kirby” or depicts a Kirby Product, either orally, visually and/or in writing, a statement in clearly legible and/or audible form that the seller “is not affiliated or connected with, or authorized by, the manufacturer of the Kirby vacuum cleaner to sell or service that product.” If the word “Kirby” is used orally, then the aforesaid statement shall be oral. If the word “Kirby” is written, then the aforesaid statement shall be written in the same type, style and size as that used for the word “Kirby.” If a Kirby Product is depicted, then the aforesaid statement shall be prominently written. With respect to television commercials, if the aforesaid statement is required to be' in writing it shall remain continuously visible on the screen without any accompanying written material for no less than three (3) seconds.
. On November 26, 1979, Kirby moved this court for a dismissal of the November 8 appeal on the ground that the court lacked jurisdiction since Dile failed to file a timely notice of appeal from the July 12 order. On January 9, 1980, the court denied the dismissal motion.
. Our jurisdiction over the appeal from the order granting the preliminary injunction is found in 28 U.S.C. § 1338(a), as to trademark infringements, and 28 U.S.C. § 1338(b) as to the unfair competition claims since they are joined with substantial and related claims under the Trademark Laws of the United States. The court has jurisdiction over the appeal from the order refusing to modify the injunction, under 28 U.S.C. § 1292(a)(1).
. The letter, dated March 8, 1979, read as follows:
David N. Ramras, Esq. 1110 East McDowell Road Phoenix, Arizona 85006
Re: The Scott & Fetzer Company v. Virgil Dile
Dear Mr. Ramras:
As you may recall, we each propounded interrogatories concerning the witnesses to be presented at the show cause hearing and the subject matter of their expected testimony. We are prepared at the present time to supplement our responses in that regard. However, in view of the fact that identical directions for supplementation were in our respective inter- . rogatories, we are .entitled to the same information from you. Therefore, we believe that the appropriate procedure is for supplemental answers to be exchanged simultaneously. Please advise me in writing at your earliest convenience as to whether you are prepared to exchange such supplementations, and if you are, the time at which you propose to make the exchange.
You may also recall that we each propounded interrogatories concerning the exhibits to be introduced at the show cause hearing. We are still in the process of determining what exhibits we intend to proffer and are willing to make the same type of exchange as set forth above when we complete our determination.
Very truly yours,
Barry L. Springel
cc: G. Mark Cord, Esq.
. “Violations of an order are punishable as criminal contempt even though the order is set aside on appeal .... ” United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947).
. The most significant difference between criminal and civil contempt concerns the purpose and character of the sanction that is imposed in each. The purpose of criminal contempt is to vindicate the authority of the court, and the order is punitive. In contrast, the objective of a civil contempt decree is to benefit the complainant and the sanction imposed is remedial. Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911).
. Smith v. Sullivan, 611 F.2d 1050, 1054 (5th Cir. 1980); Blocksom and Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (civil contempt may be defended on the ground that the underlying order was erroneously issued); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir. 1978) (an order of civil contempt cannot stand if the underlying order on which it is based is invalid); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1342-45 (3d Cir. 1976).
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_casetyp1_7-3-4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities".
In re Clarence Oral CALHOUN fdba Bimbo’s Place, Debtor. Jo Ann LONG fka Jo Ann Calhoun, Plaintiff-Appellee, v. Clarence Oral CALHOUN fdba Bimbo’s Place, Defendant-Appellant.
No. 82-3180.
United States Court of Appeals, Sixth Circuit.
Argued March 22, 1983.
Decided Aug. 30, 1983.
Donald R. Little, Canton, Ohio, for defendant-appellant.
Thomas G. Bedall, Stark County Legal Aid Society, Canton, Ohio, for plaintiff-appellee.
Before KENNEDY, MARTIN and NIES, Circuit Judges.
Honorable Helen W. Nies, United States Court of Appeals for the Federal Circuit, sitting by designation.
CORNELIA G. KENNEDY, Circuit Judge..
Clarence Calhoun appeals the Bankruptcy Court’s summary judgment that his assumption of five loan obligations totaling $27,564.14 pursuant to a separation agreement between Calhoun and his former wife were “in the nature of” support or alimony and therefore nondischargeable debts under 11 U.S.C. § 523(a)(5). We reverse and remand for further proceedings consistent with this opinion.
Appellant filed for voluntary bankruptcy under Chapter 7, 11 U.S.C. § 701 et seq., on July 1, 1980. His former wife, appellee Jo Ann Long, was listed as the holder of unspecified unsecured claims. Appellee Long brought a complaint before the Bankruptcy Court to determine whether obligations of $21,611.32 assumed by the appellant in the parties’ separation agreement constituted alimony excepted from discharge under 11 U.S.C. § 523(a)(5).
Calhoun and Long were married, both for the second time, on October 2, 1976. No children resulted from their marriage. Each had children from their first marriages. On November 14, 1979 the couple entered into a separation agreement in which Calhoun, unrepresented by counsel, agreed to assume five debts jointly incurred during the marriage and to hold Long harmless for their payment. The agreement characterizes this assumption as alimony and support although it is found in the section of the document labeled Division of Property. Another section labeled Alimony states that there shall be no alimony other than that provided in the debts and obligation section. An Ohio Common Pleas Court subsequently incorporated this agreement into a divorce decree dissolving the marriage.
The five obligations assumed by Calhoun include:
(1) A note for $8,670 to the First National Bank of Massillon which financed a swimming pool at the home owned by the appellee Long;
(2) A note for $11,000 to Floyd Schalmo, the proceeds from which were used to consolidate the couple’s debts including $5,000 for Calhoun’s business, Bimbo’s Place, and $6,000 for utilities, car payment and prior debts;
(3) Visa card charges of $1,076.38 incurred to pay for Calhoun’s expenses at a truck driving school;
(4) Mastercharge card charges of $824.22 for Calhoun’s expenses while “on the road”;
(5) A note of $5,998.40 for the purchase of a 1977 Dodge Tradesman Van titled to Calhoun.
At the time of their separation Calhoun had sold his business and had been laid off from his job as a meat cutter. His earnings for the prior three years were approximately $10,000 to $15,000 in 1977, $7,500 in 1978, and a loss in 1979. His current income is approximately $950.00 per month from which he is required to pay approximately $300.00 per month for support of two children from his previous marriage and $707.00 per month on the debts he assumed in the parties’ separation agreement. Long has an income of approximately $500.00 per month (including $260.00 in ADC payments and $160.00 in child support from her first husband). She owns her own home (which she received on dissolution of her first marriage) on which she pays $95.00 per month in mortgage payments.
This case presents the issue of when a debtor’s assumption of joint debts and the undertaking to hold a former spouse harmless as part of a marriage separation agreement constitutes support or alimony payments to the former spouse resulting in non-dischargeable debts under 11 U.S.C. § 523(a)(5).
Section 523(a)(5) represents Congress’ resolution of the conflict between the discharge of obligations allowed by the bankruptcy laws and the need to ensure necessary financial support for the divorced spouse and children of the debtor. Accordingly» § 523 excepts from discharge payments:
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that—
(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support(.)
The initial question is whether those obligations not payable directly to the former spouse are nondischargeable under § 523(a)(5). The Senate and House Reports contain conflicting language. At one point they seem to indicate payments must be made directly.
Paragraph (5) excerpts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language, in combination with the repeal of section 456(b) of the Social Security Act (43 U.S.C. 656(b)) by section 327 of the bill, will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent. See Hearings, pt. 2, at 942. (emphasis supplied)
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977) reprinted in [1978] U.S.Code Cong. & Ad.News, 5787, 6320; S.Rep. No. 95-989, 95th Cong., 2d Sess. 79, reprinted in [1978] U.S.Code Cong. & Ad.News 5865. The remaining portion of the report, however, refutes any direct payment requirement in the case of an agreement to hold a spouse harmless on joint debts.
This provision will, however, make nondischargeable any debts resulting from an agreement by the debtor to hold the debtor’s spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. See Hearings, pt. 3, at 1287-1290.
Id.
The Second Circuit rejected a requirement of direct payment in In re Spong, 661 F.2d 6 (2nd Cir.1981). The court relied, in part, on a joint explanatory statement by the principal sponsors of the Act:
If the debtor has assumed an obligation of the debtor's spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor’s spouse, former spouse, or child.
24 Cong.Rec. H11,096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); Id. at S17,412 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini). See 661 F.2d at 10.
Bankruptcy court decisions have uniformly found hold harmless clauses to create nondischargeable obligations. E.g., In re Petoske, 16 B.R. 412 (Bkrtey.E.D.N.Y. 1982); Matter of Gentile, 16 B.R. 381 (Bkrtcy.S.D.Ohio 1982); In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981). We agree with these courts and hold that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable.
In accordance with the express language of § 523(a)(5) the bankruptcy courts have uniformly required that joint obligations assumed by the debtor as a part of a separation or divorce settlement must be “actually in the nature of” alimony or support in order to be excepted from discharge. E.g., In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M. 1981); In re French, 19 B.R. 255, 256 (Bkrtcy.M.D.Fla.1982). See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981). The issue of when an assumption of joint debts is “in the nature of alimony, maintenance, or support” as opposed to a division of communal property is to be determined by federal bankruptcy law. E.g., In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982); In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy. Minn.1980). See In re Spong, 661 F.2d 6, 8-9 (2nd Cir.1981). See generally 3 Collier on Bankruptcy § 523.15(1) (15th Ed.1981). The legislative history of the provision is unequivocal on this point. Both the House and Senate Reports declare:
What constitutes alimony, maintenance, or support, will be determined under the bankruptcy law, not State law.
Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir.1974), are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1952) is followed. The Proviso, however, makes non-dis-chargeable any debts resulting from an agreement by the debtor to hold the debt- or’s spouse harmless, on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations as to whether a particular agreement to pay money to a spouse is actually alimony or a property settlement, (emphasis supplied)
S.Rep. No. 95-989, 95th Cong., 2d Sess., 79, reprinted in [1978] U.S.Code Cong. & Ad. News 5787, 5865. See also H.R. No. 95-595, 95th Cong., 1st Sess., 364 (1977), reprinted in [1978] U.S.Code Cong. & Ad.News 5963, 6320.
Yet, while it is clear that Congress intended that federal not state law should control the determination of when an assumption of joint debts is “in the nature of” alimony or support, it does not necessarily follow that state law must be ignored completely. It is unlikely that Congress could have intended such a result. The underlying obligation to provide support in the first place is necessarily determined by state law. The federal bankruptcy courts are obviously not empowered to create an obligation to support where it did not previously exist. Moreover, there is “no federal law of domestic relations.” DeSlyva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956). Divorce, alimony, support and maintenance are issues within the exclusive domain of the state courts. Boddie v. Connecticut, 401 U.S. 371, 389, 91 S.Ct. 780, 792, 28 L.Ed.2d 113 (1971) (Black, J., dissenting). We agree, therefore, with the Second Circuit’s reasoning in In re Spong, 661 F.2d at 9, that Congress could not have intended the bankruptcy courts to ignore well developed state law principles of domestic relations in determining whether a particular loan assumption is “in the nature of” alimony or support for purposes of the bankruptcy act.
Neither the case law nor legislative history, however, resolve the extent to which resort to state law would be appropriate. The rationale that has prevailed in varying degrees before most bankruptcy courts as well as the Second Circuit in In re Spong is that while state law is not binding, it nonetheless may provide a useful source of “guidance.” E.g., Id.; In re King, 15 B.R. 127, 129 (Bkrtcy.Kans.1981); In re Allen, 4 B.R. 617 (Bkrtcy.E.D.Tenn.1980); In re Pelikant, 5 B.R. 404 (Bkrtcy.N.D.Ill.1980); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M. 1981). Yet, there is little agreement as to what the vague term “guidance” actually means. Some bankruptcy courts have utilized state law to determine whether there is an underlying “obligation” to pay alimony or support in the first instance. See In re French, 9 B.R. 464, 468 (Bkrtcy.S.D.Cal. 1981); In re Miller, 8 B.R. 174, 3 Collier Bankr. Cas.2d 595, 598 (Bkrtcy.N.D.Ohio 1981); In re Warner, 5 B.R. 434, 440-41 (Bkrtcy.Utah 1980); In re Pelikant, 5 B.R. 404 (Bkrtcy.N.D.Ill.1980); In re Lowell, 3 B.R. 401, 404 (Bkrtcy.N.D.Ga.1980). Similarly, some courts have considered the amount of support a state court would have reasonably granted as a relevant factor in determining whether the loan assumption was actually in the nature of support. See, e.g., In re Jeffrey Lowell Williams, 3 B.R. 401, 404 (Bkrtcy.N.D.Ga.1980); In re French, 9 B.R. 464, 468 (Bkrtcy.S.D.Cal. 1981). A few bankruptcy courts have also considered whether some provision is made for termination of the debtor’s sole responsibility for the assumed obligation upon remarriage of the former spouse or age of majority in the children. See, e.g., Matter of Martin, 19 B.R. 367 (Bkrtcy.M.D.Fla. 1982); In re Dirks, 15 B.R. 775 (Bkrtcy.N.M. 1981) ; Matter of Taft, 10 B.R. 101, 4 Collier Bankr.Cas.2d 65 (Bkrtcy.Conn.1981).
Other bankruptcy courts have simply recited those factors most often considered relevant by state courts generally in determining whether to grant support without reference to any particular state’s law. See, e.g., In re Petoske, 16 B.R. 412, 414 (Bkrtcy.E.D.N.Y.1982); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982). These courts have looked for factors from which they might discern either the underlying purpose of the state court decree or the actual intentions of parties in providing loan assumption by the debtor; that is, was the assumption meant to be in lieu of support payments or rather just a means of dividing property upon divorce? See, e.g., Hixson v. Hixson, 23 B.R. 492, 495 (Bkrtcy.S.D.Ohio 1982); Matter of Jensen, 17 B.R. 537, 540 (Bkrtcy.W.D.Mo. 1982) ; In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982).
Fairly divergent dispositions have resulted from utilization of the above factors. The initial difficulty is that every assumption of a joint loan obligation in a divorce settlement at least indirectly contributes to support. The former spouse is relieved of payments on that debt and thus has funds for other purposes including necessary support. Support in this broad sense results even if the assumption of joint marital debts is actually a division of property. It is clear from the statute and legislative history that Congress could not have intended that all assumptions of joint debts would be nondischargeable. Such assumptions of debt are discharged “to the extent that payment ... is not actually in the nature of alimony, maintenance or support .... ” 124 Cong.Rec. 4, 11, 096 (daily ed. Sept. 28, 1978) (Rep. Edwards) 517, 412 (daily ed. Oct. 6, 1978) (Sen. DeConcini). To interpret § 528 in this broad sense envisages results at odds with the “fresh start” concept which underlies the Bankruptcy Act. See In re Dirks, 15 B.R. 775, 779 (Bkrtcy.D.N.M.1981); In re King, 15 B.R. 127, 130 (Bkrtcy.D.Kan.1981). The federal bankruptcy common law of domestic relations which Congress has apparently charged the bankruptcy courts to fashion must give considerable weight to this important factor. This, and Congress’ mandate that federal bankruptcy law considerations must be determinative in discharge-ability issues, convinces us that a more searching inquiry is required than merely applying traditional factors borrowed from state law.
We believe that the initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support through the assumption of the joint debts. If they did not, the inquiry ends there. There is no basis for the bankruptcy court to create a non-dischargeable obligation for the debtor that the state court granting the divorce decree or the parties to that proceeding did not create. In making this determination the bankruptcy court may consider any relevant evidence including those factors utilized by state courts to make a factual determination of intent to create support.
This finding of intent does not, however, control the ultimate issue of whether the assumption of joint debts was actually in the nature of support for purposes of federal bankruptcy. If the bankruptcy court finds, as a threshold matter, that assumption of the debts was intended as support it must next inquire whether such assumption has the effect of providing the support necessary to ensure that the daily needs of the former spouse and any children of the marriage are satisfied. The distribution or existence of other property, for example, may make the continuing assumption of joint debts unnecessary for support, as might drastic changes in the former spouse’s capabilities for self-support. Substance must prevail over form. E.g., In Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982); In re Miller, 8 B.R. 174, 3 Collier Bankr.Cas.2d 595 (Bkrtcy.N.D.Ohio 1981); Matter of Taft, 10 B.R. 101, 4 Collier Bankr.Cas.2d 65 (Bkrtcy.N.D.Ga.1980); In re Warner, 5 B.R. 434, 440-41 (Bkrtcy.Utah 1980). See also In re Spong, 661 F.2d 6, 9 (2nd Cir.1981); 3 Collier on Bankruptcy § 523.15(5) (15th Ed.1981). The bankruptcy court should also look to the practical effect of the discharge of each loan upon the dependent spouse’s ability to sustain daily needs. Discharge of a joint debt on the bankrupt’s automobile, for example, is unlikely to disrupt the dependent spouse’s ability to meet daily needs when the automobile itself is available to the creditor in satisfaction of the debt. If without the loan assumption the spouse could not maintain the daily necessities, such as food, housing and transportation, the effect of loan assumption may be found “in the nature of” support for purposes of the Bankruptcy Act. See, e.g., Inskeep v. Draper, 25 B.R. 518, 520 (Bkrtcy.S.D.Ohio 1982); Hixson v. Hixson, 23 B.R. 492, 496 (Bkrtcy.S.D. Ohio 1982); Matter of Painter, 21 B.R. 846, 848 (Bkrtcy.M.D.Ga.1982). If the loan assumption is not found necessary to provide such support, the inquiry ends and the debt- or’s obligation to hold the former spouse harmless must be discharged.
Having found that the loan assumption has the effect of providing necessary support, the Bankruptcy Court must finally determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support. Such an excessive allowance is at odds with the fresh start concept underlying federal bankruptcy law. For this reason, the loan assumption should be treated, to the extent possible, the same as ordinary direct child support or alimony payments. A universal consideration of state courts in setting such direct support payments is the supporting spouse’s general ability to pay the support ordered. Under the mandate of Congress that the bankruptcy court fashion a common law of bankruptcy and the principle that one cannot contract away bankruptcy rights, the bankruptcy courts in the case of an obligation to hold the former spouse harmless on joint debts must, therefore, examine the ability to pay. If, at the time the debts were assumed, the assumption substantially exceeded a spouse’s present and foreseeable ability to pay, the amount of the assumption which exceeded that ability should not be characterized as in the nature of support. We recognize the difficulty of making such a factual inquiry. However, the alternative would be to permit the debtor to contract away the right to discharge in bankruptcy and the opportunity for a fresh start. The inquiry will be limited to whether the amount agreed to is manifestly unreasonable in view of the earning power and financial status of the debtor spouse.
If the bankruptcy court finds the loan assumption too excessive to be fairly considered “in the nature of” support it must then set a reasonable limit on the nondischargeability of that obligation for purposes of bankruptcy. Use of factors similar to those a state court would employ to formulate a reasonable limit on support may be used to serve that limiting function in the context of a dischargeability determination. In such cases the bankruptcy courts should consider such traditional state law factors as the relative earning powers of the parties, their financial status, prior work experiences or abilities, other means of support and other facts relevant to the substance of the result achieved by the loan assumption in order to determine how much of the debt assumed can be fairly considered “in the nature of” support for purposes of federal bankruptcy.
The bankruptcy court’s determination of whether a loan assumption constitutes a nondischargeable support obligation is a factual finding only reviewable in the court of appeals under the clearly erroneous standard of Fed.R.Civ.P. 52. See Matter of Coil, 680 F.2d 1170, 1172 (7th Cir.1982).
See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981); In re Nelson, II, 20 B.R. 1008 (D.C.M.D.Tenn.1982) (the district court may overturn a factual finding by a bankruptcy court only if clearly erroneous. Bankr.R. 810). In this case, however, the Bankruptcy Court made two errors of law which require that the judgment be reversed and the case remanded for reconsideration without our review of the court’s factual findings.
The Bankruptcy Court first erred by applying an incorrect legal standard. The Court held, that the clear language of the parties’ separation agreement controlled the issue of dischargeability “unless the compelling weight of the evidence suggests that enforcement of the agreement would work a manifest injustice.” The language of the parties’ (or state courts’) characterization of the loan assumption does not control. Moreover, the Bankruptcy Court, in effect, shifted the burden of proof from the plaintiff spouse to the debtor to show that the agreement does not mean what it says or works a manifest injustice. Placing this degree of reliance upon the language of the parties’ agreement and placing the burden of persuasion on the debtor are legal errors which may not be separated from the court’s factual findings in this case. The contents of those findings were inextricably dependent upon the focus of the court’s inquiry.
The Bankruptcy Court also erred by not considering each loan obligation assumed individually. Many of the factors considered in determining dischargeability could vary depending upon the type of loan involved, its purposes and the circumstances of the parties. See, e.g., In re Nelson, 20 B.R. 1008 (D.C.M.D.Tenn.1982); Inskeep v. Draper, 25 B.R. 518 (Bkrtcy.S.D.Ohio 1982); Hixson v. Hixson, 23 B.R. 492 (Bkrtcy.S.D. Ohio 1982). On remand, therefore, the Bankruptcy Court should consider each of the appellant’s five assumed debts in light of the standards enunciated in this opinion.
Accordingly the judgment of the Bankruptcy Court is reversed and the case remanded for further proceedings consistent with this opinion.
. The summary judgment was based upon the parties’ stipulation of facts, the pleadings and arguments of counsel.
. The appellant Calhoun correctly notes that the Bankruptcy Court found $27,564.14 in nondischargeable debts even though the appellee only challenged $21,611.32 of the appellant’s claimed dischargeable debts. On remand the Bankruptcy Judge should reconcile and explain this discrepancy.
. Mr. Calhoun, although unrepresented, makes no claim that he misunderstood the nature of his obligations under the parties’ separation agreement. The parties agree that the terms of the agreement were explained to Calhoun by Long’s counsel and Calhoun’s consent to its terms voluntarily given. The absence of counsel is only relevant in cases in which the debtor did not understand the nature of his obligation created by the parties’ consent agreement. But see Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982).
. There are two distinct obligations involved in an agreement to assume former joint marital debts — the underlying debt owed to the mutual creditor and the obligation owed directly to the former spouse to hold the spouse harmless on that underlying debt. It is only the discharge-ability of this latter obligation which is at issue in the present case.
. These remarks were offered jointly by sponsors from both houses of Congress in lieu of a conference report on the Act. As such they are of greater value in interpreting legislative intent than the statements of individual legislators ordinarily are. See National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 640, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357 (1967).
. The latter approach of evaluating the extent of any underlying state law duty to support is arguably in contradiction to Congress’ intent that state law not be controlling. The obvious temptation is to treat as conclusive any finding that a duty to support at a specific level would exist under state law. Succumbing to such a temptation would clearly circumvent the legislature’s intent that considerations particular to federal bankruptcy law shall be determinative of dischargeability issues.
. These factors include: the nature of the obligations assumed (provision of daily necessities indicates support); the structure and language of the parties’ agreement or the court’s decree; whether other lump sum or periodic payments were also provided; length of the marriage; the existence of children from the marriage; relative earning powers of the parties; age, health and work skills of the parties; the adequacy of support absent the debt assumption; and evidence of negotiation or other understandings as to the intended purpose of the assumption.
. See discussion on pp. 1107-1108.
. At issue in the present case is solely the dischargeability of a continuing obligation to hold the former spouse harmless on past marital debts. There has been no claim made that Calhoun is in arrears on past payments due under this obligation. The dischargeability of such unpaid past liabilities requires an analysis distinct from consideration of whether the continuing obligation to hold harmless may be discharged.
. We recognize that such inquiry may, in effect, modify a judgment or decree of a state court. In view of the congressional mandate to apply a federal standard, this cannot be avoided. Actual interference, however, will probably be minimal. In a contested case the likelihood that the state court would have awarded support where it was unnecessary is sufficiently remote that such interference by the bankruptcy court will seldom be necessary. When, as in the present controversy, the decree is not the result of a contested case but merely incorporates the parties’ agreement, the concern for comity is of less importance. To allow the parties’ characterization of a loan assumption in such cases to control pro forma would permit the debtor to agree to forego his rights under the bankruptcy laws.
. .If the circumstances of the debtor have changed from the time the obligation to the former spouse to pay joint debts was created so as to make such support now inequitable the bankruptcy court may consider the debtor’s current general ability to pay insofar as it relates to the continuing obligation to assume the joint debts.
. We emphasize that the nature of this final inquiry as to whether the loan assumptions would constitute an excessive degree of support beyond that which any state court would reasonably allow given the parties’ relative circumstances, is a limited one. It is not intended that the Bankruptcy Court sit as a “super-divorce” court. Rather, the purpose of such inquiry is to ensure that the degree of support represented by the loan assumptions, particularly in uncontested cases, does not clearly exceed that which might reasonably have been awarded as support by a state court after an adversarial proceeding.
. The parties here claim to have taken a direct appeal by agreement to the Sixth Circuit pursuant to 28 U.S.C. § 1293(b). Section 1293(b) is not actually effective until April 1, 1984. However, this section refers to the note preceding 28 U.S.C. § 1471 as controlling appeals during the transitional period. That note, Pub.Law 95-598, Title IV, § 405, 92 Stat. 2686, authorizes the same form of appeal by stipulation described in § 1293(b).
. Apart from consideration of whether the assumption of joint debts is so excessive as to be unreasonable, the bankruptcy court may not find an assumption dischargeable merely on general equitable considerations. This limitation on the court’s inquiry is apparent when § 523(a)(5) is compared to § 523(a)(8) which governs the dischargeability of student loans. The latter discharge exception specifically provides that the Bankruptcy Court may find a student loan debt dischargeable if equitable considerations so warrant even though otherwise defined as a nondischargeable debt. The former has no such provision. Because of Congress’ silence, as well as the undesirable increased potential for second guessing state Court decrees, we believe that § 523(a)(5) is limited to consideration of whether the assumed debt is actually in the nature of support as defined in this opinion. See In re Nelson, II, 20 B.R. 1008, 1011 n. 3 (D.C.M.D.Tenn.1982).
. It is the spouse’s burden to establish nondischargeability. See In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy.Minn.1980).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
|
songer_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.
AMERICAN STERILIZER COMPANY, Plaintiff, v. Herbert T. BROWN, Defendant. Al KEVELSON, Appellant, v. AMERICAN STERILIZER COMPANY, Appellee.
No. 369, Docket 31104.
United States Court of Appeals Second Circuit.
Argued Feb. 8, 1967.
Decided May 1, 1967.
Julius Miller, New York City (Gleason & Miller, New York City, on the brief), for appellant.
Lawrence C. Gutman, New York City (Raines & Gutman, New York City, on the brief), for appellee.
Before MOORE, FRIENDLY and SMITH, Circuit Judges.
MOORE, Circuit Judge.
This appeal involves a dispute between appellee American Sterilizer Company (American) and appellant Al Kevelson concerning their respective rights in certain hospital equipment sold by American to one Herbert T. Brown under a conditional sales contract. For reasons hereafter stated, we affirm the district court’s finding that Kevelson has no interest in said equipment or the proceeds from the sale of said equipment.
On January 5,1961, Herbert T. Brown, purportedly acting for the “Howard Park General Hospital,” signed an agreement with American whereby American was to provide some $62,000 worth of its own hospital equipment and was to procure up to $40,000 worth of equipment for Brown from other suppliers. On August 15, 1961, a conditional sales contract for $103,859.99, covering the cost of the equipment, was entered into by American, as seller, and, as in the prior agreement, by “Howard Park General Hospital, By H. T. Brown, Pres.,” as buyer. $12,059.99 was paid as a down payment with the balance due in 60 monthly installments of $1,530.00 each. Pursuant to the New York Uniform Conditional Sales Law, New York Personal Property Law, McKinney’s Consol.Laws, c. 41, §§ 60-81-b, American filed the conditional sales contract in the Queens County Register’s Office under the name “Howard Park General Hospital.” Unbeknownst to American, however, there was no such entity as the “Howard Park General Hospital,” it being neither a corporation, partnership nor a registered trade name. The name was apparently used by Brown while he operated the hospital. For a discussion of the factual and legal complexities involved in the short term operation of the hospital known as the “Howard Park General Hospital,” see Bloom v. Associated Hospital Service, 45 Misc.2d 208, 256 N.Y.S. 2d 483 (Sup.Ct.1965).
Although the hospital was operated by Brown personally, the hospital realty was owned by the Howard Park Corporation, a corporation owned by Brown with Brown acting as both president and chairman of the board of directors. In January and March of 1963, the trustees of the Central States, Southeast and Southwest Areas Pension Fund (Trustees), a Teamsters pension fund, made a mortgage loan to the Howard Park Corporation in the aggregate sum of $3,300,000. The loan was secured by a mortgage on the real property and by a chattel mortgage on
“all fixtures, chattels and articles of personal property now or hereafter attached to or used in connection with the operation of a general hospital in the said building.”
As the Trustees had insisted that, as a condition of closing the chattel mortgage, all personal property used in connection with the hospital premises should be clear of all encumbrances, the Trustees engaged a title company to search the records for any encumbrances. The search did not disclose the American conditional sales contract and it is uncontested that, at the time of accepting the chattel mortgage on March 18, 1963, the Trustees had no actual knowledge of the existence of the conditional sales contract. Both the January real property mortgage and the March chattel mortgage were signed: “Howard Park Corporation, By: Herbert T. Brown.”
The hospital did not prosper, as it apparently was not being operated in accordance with State law, see Bloom, supra, and both Brown and his corporation became financially embarrassed. In 1965, the Trustees instituted a foreclosure action on the mortgages, then in default, and a second record search — this time to ascertain the required parties to be named in the foreclosure suit — did not disclose the American conditional sales contract.
In January 1966, American filed the instant suit in the district court against Herbert T. Brown personally for breach of the conditional sales contract, alleging that “Howard Park General Hospital” was not a corporation but an unregistered trade name used by Brown. Brown failed to answer the complaint and a default judgment in the amount of $40,-584.64 was entered against him on April 8, 1966 for the balance due on the purchase price of the hospital equipment. American, after entry of judgment, duly delivered a property execution to the United States Marshal for the Eastern District of New York who entered the hospital premises and levied upon the equipment covered by the conditional sales contract by attaching bright colored tags on each and every item so covered. Subsequent to this physical levy, the foreclosure action instituted by the Trustees was completed, and one David Fischoff was the successful bidder at the resulting foreclosure sale held on August 5, 1966, which was made subject to “any state of facts an accurate survey or a physical inspection would disclose.” Fischoff immediately assigned his interest to A1 Kevelson, the appellant herein, a man thoroughly familiar with the commercial matters involving the Howard Park General Hospital. There is no question but that, prior to the forclosure sale, both Fischoff and Kevelson had full knowledge of the Marshal’s levy made on the equipment covered by American’s conditional sales contract.
In order to litigate the question of what interest, if any, he has in the hospital equipment, Kevelson intervened in American’s suit against Brown and moved to permanently stay the United States Marshal’s sale of the tagged equipment, alleging that the equipment had been covered by the chattel mortgage to the Trustees and that, therefore, he had acquired title to the equipment through the foreclosure sale. On December 12, 1966, the district court denied the motion ruling that, although American was not entitled to the protection of the recording act, New York Personal Property Law § 65, as it had not properly filed the conditional sales contract, American must still prevail as against Kevelson as (1) Kevelson had full knowledge of the facts at the time he acquired an interest in the hospital property, and (2) the equipment had been sold to Brown personally and was thus not covered by the mortgage conveyed by the Howard Park Corporation to the Trustees as the Corporation never had title to the equipment. Kevelson duly appealed to this Court from the district court’s determination.
On March 15, 1967, subsequent to the oral argument of this appeal, the Marshal’s sale took place and the equipment was sold; therefore, Kevelson’s request for a permanent stay is now moot. However, the underlying issue concerning the respective rights of American and Kevelson in the tagged equipment— or proceeds from the sale of the equipment — is by no means moot. We thus turn to the merits of the controversy.
In order for Kevelson to establish any right in the hospital equipment, he must demonstrate (1) that American failed to properly file the conditional sales contract, and (2) that the Howard Park Corporation had title to the equipment on March 18, 1963 when it executed the chattel morgage to the Trustees. We agree with the district court that the Howard Park Corporation never had title to the equipment.
Kevelson makes an initial argument that the various items of equipment covered by the conditional sales contract were fixtures rather than personalty and thus a part of the hospital realty. Kevelson thus seeks to invoke § 67 of the New York Personal Property Law which places additional burdens on conditional vendors attempting to reserve an interest in property that is affixed to realty. We are spared the necessity of analyzing the effect of § 67 as we believe that a glance at the list of equipment covered by American’s contract discloses that the equipment is clearly personalty and, thus, § 67 is inapplicable. Moreover, the conditional sales contract itself — which must be taken as embodying the intent of the parties — contained the following clause: “Said equipment shall: remain personal property; not become part of the freehold.”
Section 64-a of the New York Personal Property Law requires that, to
enjoy the protection of the recording act, a conditional sales contract must contain: “The name of the * * * buyer.” The conditional sales contract in this case named the “Howard Park General Hospital” as buyer, whereas in fact there was no such entity, the real buyer being Herbert T. Brown individually. The New York statutes relating to conditional sales contracts were enacted “for the benefit of creditors and bona fide purchasers and are construed strictly against the parties to the contract and with liberality as to those for whose protection the statutes were enacted.” In re Amity Dyeing & Finishing Co., 200 F. Supp. 823, 826 (S.D.N.Y.), aff’d on other grounds, 304 F.2d 831 (2d Cir. 1962). The New York law is clear that it is incumbent upon the conditional vendor to ascertain and verify the name of the buyer. Industrial Bank of Commerce v. Packard Yonkers Corp., 279 App.Div. 125, 108 N.Y.S.2d 249 (1st Dep’t 1951), aff’d, 304 N.Y. 622, 107 N.E.2d 96 (1952). We therefore conclude that American, in filing the contract against a non-entity, did not properly comply with the New York recording statutes. The Trustees could not be charged with record notice of the conditional sales agreement.
American argues that, apart from the fact that the Trustees did not have notice of the conditional sales contract when they accepted the chattel mortage, Fischoff and Kevelson did have notice of the sales agreement at the time of the foreclosure sale and therefore purchased the property subject to American’s rights. The district court accepted this contention. The argument, however, overlooks the basic purpose of the recording act which is to protect the bona fide purchaser or mortgagee for value without notice — in this case the Trustees. For example, assuming for the moment that the March 1963 chattel mortgage did cover the equipment, the Trustees would have illusory protection if they could not be sure that good title to the equipment could be conveyed at a foreclosure sale where all potential buyers would have notice of American’s claims. Cf. Wood v. Chapin, 13 N.Y. 509, 518 (1856); Rosenberg v. People, 12 Misc.2d 710, 172 N.Y.S.2d 845, 847 (Sup.Ct.1958); Olsen v. Kleinhenz, Sup., 86 N.Y.S.2d 178, 180 (Sup.Ct.1948). Contrary to the district court’s ruling, therefore, we hold that Kevelson’s knowledge of American’s claim at the time Kevelson acquired the hospital property is immaterial.
The crux of this ease centers around the fact that the Howard Park Corporation never obtained title to the equipment covered by American’s conditional sales contract and thus was incapable of conveying any interest in the equipment to the Trustees. The Howard Park Corporation owned the realty, but did not operate the hospital. As a State court has found, see Bloom, supra, Brown operated the hospital individually. American sold the equipment to Brown and not to the Corporation.
Kevelson argues that the fact of Brown’s signature on the conditional sales contract as well as on the chattel morgage shows either (1) that Brown really signed the conditional sales contract as president of the Corporation so that the Corporation did acquire title to the equipment, or (2) that, although Brown bought the equipment individually, his execution of the chattel mortgage for the Corporation doubled as a transfer of the equipment from himself to the Corporation and- a mortgaging of the equipment by the Corporation to the Trustees. The district court rejected these arguments, finding, as to the second contention, “no indication of an agreement between Brown and the Howard Park Corporation concerning the transfer of the equipment for any value received.” From the record as a whole, we believe the district court’s finding against Kevelson on this point was correct.
We thus affirm the district court’s holding that Kevelson never obtained any interest in the equipment covered by the conditional sales contract. Kevelson, thus, does not now have any interest in the proceeds from the Marshal’s sale of that equipment.
Affirmed.
. Repealed by N. Y. Uniform Commercial Code § 10-102 (eff. Sept. 27, 1964). The new filing provisions of tbe UCO do not apply to this case.
. The list includes a wide variety of standard hospital equipment from bedpan racks and stainless steel tables to operating tables and sterilizing equipment.
. It might be pointed out that if American properly had named Brown as the buyer and filed the conditional sales contract against the name of Brown in the Queens County Register’s Office, the Trustees would probably not be chargeable with record notices as they were dealing with the Howard Park Corporation rather than with Brown individually. But, of course, if the Howard Park Corporation never had title to the equipment — a point discussed infra — notice to the Trustees is immaterial as the Corporation could not convey an interest in the equipment to the Trustees.
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_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.
In re ALBERT DICKINSON CO. COWAN et al. v. DICKINSON INDUSTRIAL SITE et al.
No. 6816.
Circuit Court of Appeals, Seventh Circuit.
May 22, 1939.
Rehearing Denied June 24, 1939.
Samuel E. Hirsch, Abraham Greenspahn, and Julian H. Levi, all of Chicago, Ill., for appellants.
Benjamin Wham and Walter A. Wade, both of Chicago, Ill., and Winston, Strawn & Shaw, of Chicago, Ill., for appellees.
Before EVANS, SPARKS, and KER-NER, Circuit Judges.
EVANS, Circuit Judge.
This appeal is .one of several taken from an order entered in the reorganization of the debtor, Albert Dickinson Co. In the order complained of the court fixed the compensation of attorneys and a bondholders’ protective committee as follows:
Blumberg, Samuels and Stone, attorneys for petitioning creditors ..........'............. $ 3,000
Glenn, Real & Browning, attorneys for $19,000 of bonds.....$10,000
Poppenhusen, Johnston, Thompson & Raymond, attorneys for committee ................. $13,000
Edelson, Edelson & Wise, attorneys representing $20,000 of- bonds................... $ 6,000
Rudolph G. Mueller, Secretary to Committee............... $ 2,000
Greenebaum Investment Co., depositary .................... $ 2,443.75
Mayer Karasik, for disbursements ...................... $ 1,816.90
Henry Fechheimer ........... $ 290
Benjamin H. Miller, attorney for creditors ............... $ 500
Percy Cowan, Greenebaum, Wade and Levi, Members of the first mortgage bondholders’ committee representing 70% of the bondholders...... $ 2,000
Carl R. Chindblom,' special master ........................ $ 275
William J. Snyder, court reporter ..................... $ 389.75
The appellee appealed from the allowances to all the aforesaid parties except the .last three. The allowance to the firm of Glenn, Real & Browning, has been heretofore affirmed (Appeal No. 6842). The respondents — Karasik; Fechheimer and Miller; Poppenhusen, Johnston, Thompson & Raymond; Edelson, Edelson & Wise; Blumberg, Stone & Samuels— settled their differences while the appeal as to them was pending. Payments in full were made to Mueller, Secretary to the Committee, and Greenebaum Company, depositary. Of the several allowances of fees challenged there remains but one un-disposed of, to-wit, the claim of the bondholders’ protective committee, composed of Percy Cowan, Edgar N. Greenebaum, Walter A. Wade, and Julian H. Levi.
The District Court allowed this committee the sum of $2,000. It asked for and here contends that it should be allowed the sum of $20,000.
The appellee argues that the appeal should be dismissed because not taken as' the statute provides. It does not seriously dispute the asserted insufficiency of the allowance, but argues that there was not such abuse of discretion as to warrant our disturbing this award.
The Chandler Act was approved June 22, 1938, and became effective September 22, 1938. The petition for reorganization of debtor was approved September 10, 1934. The order from which this appeal was taken was entered October 26, 1938. The District Court never made any order declaring the Chandler Act applicable to these proceedings nor did this court. No application for such order was in fact made to either court.
Appellants, on November 25, 1938, and within thirty days from the entry of the order complained of, applied to this court for leave to appeal. We allowed the appeal. Appellee proceeded in the same way in appeal No. 6822. It applied to this court for leave to appeal from said order, on December 5, 1938. Its application was denied by this court.
As the law stood prior to the enactment of, the Chandler amendment, it was well settled that an appeal from an order allowing compensation to attorneys and other parties entitled thereto in these reorganization cases rested with the Circuit Court of Appeals, which was required to exercise a discretion. Shulman v. Wilson-Sheridan Hotel Company, 301 U.S.,172, 57 S.Ct. 680, 81 L.Ed. 986.
The committee’s petition to appeal from the District Court’s order of October 26, 1938, was granted by this court on December 13, 1938. Appellee contends that the appeal should have been perfected pursuant to Section 24, subds. a, b, of the Chandler Act, 11 U.S.C.A. § 47(a, b) which reads:
“The Circuit Courts of Appeals of the United States * * * are hereby invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy, to review, affirm, revise, or reverse, both in matters of law and in matters of fact: * * * Provided further, That when any order, decree, or judgment involves less than $500, an appeal therefrom may be taken only upon allowance of the appellate court.
“b. Such appellate jurisdiction shall be exercised by appeal and in the form and manner of an appeal.”
Section 250 of the Chandler Act, 11 U.S.C.A. § 650, reads:
“Appeals may be taken in matters of law or fact from orders making or refusing to make allowances of compensation or reimbursement, and may, in the manner and within the time provided for appeals by this Act [title], be taken to and allowed by the circuit court of appeals independently of other appeals in the proceeding, and shall be summarily heard upon the original papers.”
Two other provisions of the Chandler Act are worthy of consideration:
Sec. 276.c. “The provisions of sections 77A and 77B of chapter VIII * * * approved July 1, 1898, shall continue in full force and effect with respect to proceedings pending under those sections upon the effective date of this amendatory Act, except that— * * *
“(2) If the petition in such proceedings was approved more than chree months before the effective date of this amendatory Act, the provisions of this chapter shall apply to such proceedings to the extent that the judge shall deem their application practicable * * 11 U.S.C.A. § 676(c) (2).
Section 6.b. provides:
“Except as otherwise provided in this amendatory Act, the provisions of this amendatory Act shall govern proceedings so far as practicable in cases pending when it takes effect; but proceedings in cases then pending to which the provisions of this amendatory Act are not applicable shall be disposed of conformably to the provisions of said Act approved July 1, 1898 * * * ” 52 Stat. 940, 11 U.S.C.A. § 1 note.
Counsel are unable to agree what law applies. While the appellee followed the same practice as the appellants, it now argues that appellants’ appeal should be dismissed.
Construing all of the aforesaid sections together with the Bankruptcy Act in force before the Chandler Act, we conclude : -
(1) The provisions of the Chandler Act govern this appeal.
(2) Where the court has not had occasion to pass upon the practicability of applying subdivision (2) of section 276(c),, said subdivision (2) should be ignored.
(3) Because “this amendatory Act” (The Chandler Act) elsewhere expressly covers the subject of appeal, section 6(b) does not govern.
(4) Section 250 of the Chandler Act, being a specific provision, applies to appeals from orders fixing compensation or disbursements .to attorneys who render services. The maxim generalia specialibus non derogant controls.
(5) Appeals, from an order making an allowance of compensation or reimbursement to those entitled thereto, or who make claim for such compensation and are refused it by the District Court, are allowed only in the discretion of the Circuit Court of Appeals.
- (6) All other appeals from orders or decrees entered’ by the courts of bankruptcy, except from judgments involving less than $500, must be taken as other appeals in equity suits, namely, as provided for by section 73 of the Rules of Civil Procedure, ’ 28 U.S:C.A. following section 723c.
Applying these conclusions to the facts in the instant case, we conclude that the appellants properly sought the allowánce of their appeal on this court.
The motion to dismiss the appeal must therefore be denied.
On the merits of the appeal we are confronted by a fact question, — the legitimate range of judicial discretion.
The debtor is a company which for fifty years successfully conducted a large business in seeds. Its sales in a single year reached an aggregate of $15,000,000. Changes in method of distribution and the financial upset and business depression of the early ’30s proved too much for it to withstand, and section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, when that amendment was enacted, became a harbor into which it sailed for rest and repairs.
• At the time its outstanding bonded indebtedness was $1,900,000, which was in default; it owed $300,000 in taxes; its real estate was appraised at $2,500,000.
A bondholders’ protective committee was immediately created by holders of substantial amounts of bonds, to-wit, $60,000, $50,000, $40,000, and $10,000.' Mr. Greene-baum, a member of the house of issue, was the fifth member of the committee.
It and the debtor immediately gave attention to a plan of reorganization which was subsequently submitted to the security holders. It contemplated a loan of $750,-000 from the R. F. C. It failed because debtor was unable to negotiate the loan on terms which it could meet.
The committee hired auditors and a management engineer and made every effort to submit a more feasible plan of reorganization, acceptable to debtor and security holders. ' Several attorneys, representing smaller bondholders, Cooperated. The problem was complex and perplexing. There were fewer petty and captious objections to proposals .than usual, although there were differences of opinion. Postponements and delays occurred. Much time was necessarily devoted by all to the problem of reorganization which presented as many business as.-legal questions.
Finally, a proposal which met with favor was submitted, was somewhat modified, and later approved- by the security holders and the court. The new plan provided, among other things, for debtor’s raising $150,000 from an outside source, a reduction in the amount of floor space used by it, and. the leasing of the balance and the securing of said lease. These were the outstanding ■ advantages of the plan for which all parties claim credit, but of which we think it might be better said — all parties contributed in greater or less degree.
When the plan was finally approved, appellants represented 70% of the security holders, or- moré than $1,250,000 (par value) of the bonds. They assert that in this particular case the bondholders’ committee was as active as the attorneys for the committee or as the attorneys for any other party; that their voice was more authoritative, because without their approval no plan could become effective; that they were the party most instrumental in bringing $150,000 of additional capital and the securing of a paying lease, which meant revenue in the future. On this committee were two able lawyers.
We fully sympathize with the District Court in its effort to conserve the property for the creditors. To do this and at the same time do justice to those who render meritorious service in a reorganization of this kind is no easy task. Differences of opinion as to the nature and value of services among the participating attorneys are well nigh inevitable.
We fully agree the amount of securities represented by a group or an attorney should not be the sole, or even the determining, factor in fixing the amount of compensation. Nor would we, on the other hand, by any means ignore it when passing on fees asked in most cases. It may and often does help.in appraising the good faith, as well as the value of the services.
Another disturbing factor, present in many cases, and not entirely absent here, is the apparent duplication of services for which compensation is sought.
Appellants concede that in making the allowances, the trial court exercised a discretion, and that discretion should not be disturbed unless improvidently exercised. In other words, to disapprove, we must find there has been an abuse of discretion.
What is judicial discretion? How is its abuse determined?
At best, it is a somewhat relative term. No standard or measuring stick has been or can be devised that may be successfully applied in all cases. It and the words used to define it are somewhat elastic. In Newton v. Consolidated Gas Co., 259 U.S. 101, 105, 42 S.Ct. 438, 439, 66 L.Ed. 844, the Court spoke of it as follows:
“ * * * Discretion within intendment of the rule is a judicial one; it does not extend to arbitrary and unreasonable action; and our review is limited to the question of its improvident exercise.”
In the last analysis it comes down to a question of the extent of the difference between the trial court’s or the fact trier’s judgment and the judgment of the reviewing tribunal. In bankruptcy cases it may at times be measured by the difference between the judgments of a master or a referee and that of the District Court. In the Matter of Edward S. Duvall et al., 7 Cir., 103 F.2d 653, decided April 28, 1939.
It must be conceded by all that in matters where differences are not large, we must hold the District Court’s judgment is supreme. But we are not much nearer the goal of our inquiry — for our study merely shifts to what are the limits of said range.
At times we can define a term best by illustrating what it is not. When the distance between-the amount allowed and the amount claimed is so great that we can not reconcile them, and the good faith rendition of meritorious service is admitted, we have a case which calls for modification.
Somewhat similar questions arise in tort actions wherein excessive or inadequate damages are allowed by a jury. Refusal to disturb the verdict of a jury or the judgment of the trial court thereon, when the amount is either grossly excessive or grossly inadequate, because the amount of damages is for the jury to decide, is an avoidance of judicial responsibility. The rule is the same whether the case involves fees or awards in damage actions. The duty to act is as clear and as impelling in one case as in the other.
The reorganization of this debtor was for the benefit of its creditors. Its past history, its large real estate holding, its value as a going concern, and other property of value to it in the operation of its business, should be saved if possible. In short, the conservation of the property was essential to the protection of the bondholders.
In order that such a reorganization take place, it was necessary for the bondholders themselves, or for attorneys representing them, or both, to render certain services. That there is much false and foolish action of no benefit to tlfe debtor estates and devoid of intelligence and good faith in many cases brought under Section 77B, does not affect the rule that compensation is due and should be awarded to those who render services of merit. The heavy expense of a reorganization seems an unavoidable consequence of our doing business through large corporations where large sums of money are borrowed from investors who are not well informed as to the character of the security issued to them. But it was a condition that confronted these bondholders when the mortgagor defaulted in its interest payments, and they then learned that their mortgage bonds failed to fully measure up to their once-held beliefs, — a condition that demanded action. We can not too severely condemn the action of those who attempt to profit out of the investors’ distress and their lack of experience.
The expenses of foreclosures, reorganizations, and receiverships, heavy, yet unavoidable in any case, have, in some instances, been multiplied by studied efforts to delay proceedings and prolong receiver-ships, by unnecessary duplications of services by many counsel, by frivolous objections made by bondholders’ counsel in an effort to create nuisance value and by other methods familiar to those who have had intimate contacts with reorganization proceedings brought under the Bankruptcy Act.
Avoidance of this undesirable situation can only be successfully attained by the court announcing early in the proceedings that for duplications of services no compensation will be allowed. In fact, we see -no way of avoiding embarrassment and . trouble save by the court’s informing some of the attorneys, committees, and other agencies that their services will not be paid out'of funds, in the court’s possession. In the absence of such action, the questions of the total amount of fees and distribution of said fees among the many applicants will surely arise to perplex those who are responsible for the reorganization.
In the instant case we have no such embarrassing situation. All of the allowances were modest. The allowance to bondholders’ committee is the only item of .which we have doubt.- It was disposed of by a well-nigh complete rejection because the court entertained the view that bondholders’ committees are, generally speaking, useless instrumentalities that accomplish little or nothing or which do nothing of benefit to the reorganization. This may be true in many cases, but it does not necessarily constitute a universal practice. According to members of the committee, it was not true in this case and the record supports this statement. It came into existence upon the urgent request of holders of sizable numbers of bonds. Others joined them until seventy per cent, of the holders of the entire bond issue spoke through this committee. Two of its members were lawyers with experience in 7733 proceedings. Had they merely sought to multiply fees, they could have appeared separately .and represented individuals as other counsel in this case appeared for smaller groups of creditors. Their refusal, to thus stultify themselves commends their present position to our favorable consideration.
Unless the court is justified in refusing the committee any compensation, the services rendered necessitated an allowance in excess of $2,000. To compensate each of four members representing bonds of the face value of $1,300,000,. for three years’ work, at a total of $500 each, seems grossly inadequate.
The range within which the trial judge’s discretion has free and uncontrolled play must have outside limitations, —below and above which it can not go. That this committee was entitled to some compensation is conceded. The fact that the court made it an allowance is proof the court so concluded. It, of- course, should not be denied compensation on the theory that most committees are supernumeraries and of no value in the reorganization of the debtor, if in truth and fact it showed itself to be a serviceable agency working in good faith for those who were vitally interested in recovering the largest possible amount for the creditors.
We are not unmindful that a dominant rule governing the allowance of fees is the one which limits the total amount of all fees to what the enterprise can reasonably bear. Of course, this does not mean that the total allowance should be divided to the total exclusion of any deserving applicant who has rendered meritorious and valuable services, and another claimant rendering like services, benefited. Testing the allowances by this standard no fault can be found with the total allowances.
The allowance of $2,000 to the bondholders’ committee, upon what is clearly shown to be the services by them rendered, is so much below the actual value of its services and the benefits which accrued to the debtor, that it amounts to an abuse of discretion. Comparing allowances to others who appeared in the action and upon the showing of services rendered, we are convinced that the allowance should not have been less than $10,000 In designating $10,000, we are not fixing the actual value of that service, but stating a sum below which an allowance can not be allowed to stand.
In other words, the range within which the judicial discretion may operate has the sum of $10,000 for its minimum. . As in the case of excessive verdicts, the appellate court fixes the amount above which a verdict or judgment will not be allowed to stand. So here we fix the minimum.
The decree is modified by an allowance of $10,000 to the bondholders’ committee. As modified, it is affirmed, appellants to recover their costs.
On Petition for Rehearing.
Appellee, on this rehearing, strenuously assails the correctness of that part of our opinion which holds that appeals from orders making provision for compensation of counsel are allowable only in the discretion of the Circuit Court of Appeals. Inasmuch as this pronouncement was for the purpose of settling the practice, we have given the matter further consideration.
The deference we owe to, and the respect we have for the views of, the Second Circuit Court of Appeals, which reached a different conclusion in London v. O’Dough-erty, 102 F.2d 524, have added to our anxieties.
In reaching our conclusion we were guided by what we believed to be the intention of Congress in enacting the bankruptcy legislation, namely, the desire to expeditiously administer the estates of insolvents. The more recent amendments to the general bankruptcy act, which for the purpose of convenience might be called the reorganization provisions as distinguished from the liquidation sections of the old act, should be similarly construed. Expedition in the reorganization of a debtor is as essential for the protection of creditors as is expedition in liquidations under the old bankruptcy act.
One of the possible methods of delay is through appeals. While the right to apply for an appeal in bankruptcy cases may be as important as in other suits, experience has demonstrated that there is a possibility for the misuse of the said right of appeal where reorganization of a debtor with many creditors holding valuable assets is about to be effected. Such a situation affords unusual opportunities for one avariciously inclined to create a nuisance value for a claim otherwise lacking in merit.
In other words, appeals may tie up the liquidation of the estate or the reorganization of the debtor, although the amount involved is relatively small.
It seems, for this reason, Congress has, in the old act as well as in the amended act, guarded against abuse by providing that the right of appeal shall not be an absolute one but, in some cases, allowable only in the discretion of the court of appeals.
Section 250 of the Chandler Act, 11 U.S.C.A. § 650, carries such an intention on the part of Congress. In construing this section, it is significant, first, that it deals specifically and exclusively with appeals taken from orders allowing compensation or reimbursements, and, second, that it provides expressly for limitation of time within which the appeal may be taken and it also provides that such appeals “be taken to and allowed by the circuit court of appeals independently of other appeals in the proceeding, and shall be summarily heard upon the original papers.” In other words, Congress, by this section, was dealing specifically with the subject of appeals from an order allowing compensation to those who had helped in the reorganization of the debtor. The last clause squarely indicates the necessity of prompt disposition of the appeal. The clause “allowed by the circuit court of appeals” can not be ignored. It suggests an intent to avoid frivolous appeals and appeals for purpose of delay. It necessitates the exercise of a discretion by the Circuit Court of Appeals to the end that delays may be avoided. At the same time, it protects the rights of those who are sincerely convinced that an allowance was either inade-quáte or extravagant. Dealing as it does, specifically with this subject-matter, it should be construed as exclusive.
The petition for rehearing is denied.
The par value of the bonds must not be confused with actual value.
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_state
|
23
|
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".
DIRECT TRANSIT LINES, Inc. v. LOCAL UNION NO. 406, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. OF L., et al.
No. 11700.
United States Court of Appeals Sixth Circuit.
Oct. 21, 1952.
Clark, Klein, Brucker & Waples, Detroit, Mich., for petitioner.
Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
PER CURIAM.
The Direct Transit Lines, Inc., has filed recently in this court a petition for writ of mandamus, to be directed to the United States District Judge for the Western District of Michigan, praying that the Judge be directed to vacate an order entered by him on July 3, 1952, and directing him to remand this cause to the Circuit Court of Kent County, Michigan, from which it was brought to the United States District Court by removal.
The petitioner has filed a carefully prepared brief in support of its petition and has cited many authorities which have been duly considered, along with numerous authorities including opinions of this court which are not cited by the petitioner. The gravamen of the petition is that the district court erred in holding that it has jurisdiction of the subject matter, in that it had no original jurisdiction in the premises; and, moreover, that error was committed by the district court in holding that the petitioner could not amend its complaint so as to divest the district court of jurisdiction after the cause had been removed to the United States District Court.
The original complaint filed by petitioner in the state circuit court sought an injunction against described unlawful acts alleged to have been committed by Local Union No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., District Council No. 43 and its members. The complaint also sought $50,000 damages against the defendants.
On February 5, 1952, the district judge denied the motion of Direct Transit Lines, Inc., to remand to the state court, and filed an opinion supporting his action. Whereupon, on February 7, 1952, the petitioner amended its bill of complaint by deleting therefrom the paragraph in which it sought $50,000 damages and filed a second motion to remand, in reply to which the district court filed a carefully considered opinion denying the motion.
Two basic grounds were given by the district court as the basis of its ruling: (1) that there was presented a controversy affecting interstate commerce and that a federal question was involved, in that the Labor Management Relations Act of 1947 [commonly called the Taft-Hartley Act], 29 U.S.C.A. § 141 et seq,, was applicable; and (2) that at the time of the removal of the cause to the United States District Court the complaint demanded $50,000 damages, bringing it plainly within section 303 of the Labor Management Relations Act and thereby unquestionably sustaining the jurisdiction of the United States District Court to try the cause.
We think it true, as asserted by the district judge, that the cause should not be remanded if it were properly removable upon the record as it stood at the time of the filing of the petition for removal. See Brown v. Eastern State Corporation, 4 Cir., 181 F.2d 26, 28, certiorari denied 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631. See also Pocohontas Terminal Corporation v. Portland Building & Construction Trade Council, D.C.S.D.Me., 93 F.Supp. 217. In the instant case, it should be observed that, at the time of the removal, the petitioner was-demanding $50,000 damages, as well as injunctive relief, and it was only after the district judge had first denied the motion to remand that the petitioner withdrew, by amendment, its demand for damages.
Even apart from the claim of petitioner for damages as a basis for jurisdiction in the district court, we think the court had jurisdiction, inasmuch as the Labor Management Relations Act of 1947 is directly involved in the situation shown by the record to be a controversy involving interstate commerce. See especially section 8(b) (1) of the Labor Management Relations Act, 29 U.S.C.A. § 158(b) (1).
Paragraph six of the complaint avers, inter alia, that the defendants have indulged in conduct intended to harass and hinder the petitioner company in the operations of its lawful business, in order to force it to coerce its employees to> join the defendant union. In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873, is emphasized by petitioner as controlling authority. In that case, the Supreme Court declared that writs of mandamus must not be permitted to' usurp the functions of writs of error or appeals, and that it is only in cases made clear by the record that, as a matter of law, the federal court is without jurisdiction fio take any action whatever that a writ of mandamus should be issued, remanding a cause removed from the state court to the federal court. The ultimate test was said to be whether the action could have been originally brought in the federal court. If so, jurisdiction should be retained.
The following cited cases, among others, have been considered and the principles derived from them support, in our opinion, the conclusion which we have reached. Ex parte Harding, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252; In re Cleland, Petitioner, 218 U.S. 120, 30 S.Ct. 647, 54 L.Ed. 962; Matter of Riggs, 214 U.S. 9, 29 S.Ct. 598, 53 L.Ed. 887. Two of our own previously published opinions may be helpful in considering the appropriate exercise by an appellate court of the peremptory writ of mandamus. State of Tennessee v. Taylor, 6 Cir., 169 F.2d 626; Youngblood v. United States, 6 Cir., 141 F.2d 912.
The petition for writ of mandamus is denied.
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_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).
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 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_appfiduc
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
LOUISVILLE TRUST COMPANY, and Citizens Fidelity Bank and Trust Company, Joint Administrators with the Will Annexed of the Estate of John A. O’Brien, Deceased, Plaintiffs-Appellees, v. Patricia R. SMITH, Defendant-Appellant.
No. 14628.
United States Court of Appeals Sixth Circuit.
Oct. 13, 1961.
Walter B. Smith, Louisville, Ky., for defendant-appellant, Patricia R. Smith.
Irvin Marcus, R. Lee Blackwell, Bullitt, Dawson & Tarrant, Louisville, Ky., for plaintiff-appellees, Louisville Trust Co. and Citizens Fidelity Bank & Trust Co., joint administrators with the will annexed of the estate of John A. O’Brien, deceased.
Before CECIL, WEICK and O’SULLIVAN, Circuit Judges.
PER CURIAM.
The order of the District Court, from which this appeal was taken, granted plaintiffs’ motion for leave to file an amended reply to defendant’s counterclaim; granted plaintiffs’ motion for summary judgment on defendant’s counterclaim and denied defendant’s motion for leave to file an amended counterclaim.
The District Court has not yet made any disposition of plaintiffs’ claim for relief set forth in their complaint which is still pending in that court.
Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. provides the only manner in which the court may direct the entry of a final judgment upon one or more, but less than all claims for relief in an action, namely, upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The District Court made no such express determination and direction. Without such determination and direction the action was not terminated as to any of the claims for relief and the order appealed from is subject to revision at any time before the entry of judgment adjudicating all of the claims. The order was not, therefore, a final order, but is interlocutory in nature. New Amsterdam Casualty Co. v. United States, 5 Cir., 272 F.2d 754; Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 10 Alaska 458. No appeal may be prosecuted from the order until it has become final. 28 U.S.C. § 1291.
The motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_appel1_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
MONETTI, S.P.A., and Melform U.S.A., Inc., Plaintiffs-Appellants, v. ANCHOR HOCKING CORPORATION, Defendant-Appellee.
No. 90-2570.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 14, 1991.
Decided May 1, 1991.
Jonathan G. Bunge, Stephen L. Agin, Kevin Tottis, Jill E. Evans, Keck, Mahin & Cate, Chicago, III, for plaintiffs-appellants.
John A. Relias, Jeannine M. Pisoni, Jennifer A. Murphy, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant-ap-pellee.
Before WOOD, Jr. and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
POSNER, Circuit Judge.
This is a diversity suit for breach of contract; the parties agree that Illinois law governs the substantive issues. The district judge dismissed the suit, on the defendant’s motion for summary judgment, as barred by the statute of frauds, and also refused to allow the plaintiffs to amend their complaint to add a claim of promissory estoppel. The appeal, which challenges both rulings, presents difficult and important questions concerning both the general Illinois statute of frauds, Ill.Rev.Stat. ch. 59, U 1, and the statute of frauds in the Uniform Commercial Code, UCC § 2-201, adopted by Illinois in Ill.Rev.Stat. ch. 26, 11 2-201.
The plaintiffs are Monetti, an Italian firm that makes decorative plastic trays and related products for the food service industry, and a wholly owned subsidiary, Melform U.S.A., which Monetti set up in 1981 to market its products in the U.S. In 1984, Monetti began negotiations with a father-and-son team, the Schneiders, importers of food service products, to grant the Schneiders the exclusive right to distribute Monetti’s products in the United States and in connection with this grant to turn over to them Melform’s tangible and intangible assets. While these negotiations were proceeding, the Schneiders sold their importing firm to Anchor Hocking, the defendant, and their firm became a division of Anchor Hocking, though — at first — the Schneiders remained in charge. In the fall of 1984, the younger Schneider, who was handling the negotiations with Monetti for his father and himself, sent Monetti a telex requesting preparation of an agreement “formalizing our [i.e., Anchor Hooking’s] exclusive for the United States.” In response, Monetti terminated all of Mel-form’s distributors and informed all of Mel-form’s customers that Anchor would become the exclusive U.S. distributor of Mon-etti products on December 31, 1984.
On December 18, the parties met, apparently for the purpose of making a final agreement. Monetti — which incidentally was not represented by counsel at the meeting — submitted a draft the principal provisions of which were that Anchor Hocking would be the exclusive distributor of Monetti products in the U.S., the contract would last for ten years, and during each of these years Anchor Hocking would make specified minimum purchases of Mon-etti products, adding up to $27 million over the entire period. No one from Anchor Hocking signed this or any other draft of the agreement. However, the record contains a memo, apparently prepared for use at the December 18 meeting, entitled “Topics of Discussion With Monetti.” The memo’s first heading is “Exclusive Agreement — Attachment # 1” — a reference to an attached draft which is identical to the Monetti draft except for two additional, minor paragraphs added in handwriting. Under the heading appears the notation “Agree” beside each of the principal paragraphs of the agreement, with one exception: beside the first paragraph, the provision for exclusivity, the notation is “We want Canada” (i.e., exclusive distribution rights in Canada as well as in the U.S.). On the bottom of the left-hand side of the last page appears the legend “SS/mh” — indicating that the younger Schneider (Steve Schneider) had dictated the memo to a secretary.
Shortly after the December 18 meeting, Monetti — which had already, remember, terminated Melform’s distributors and informed Melform’s customers that Anchor Hocking would be the exclusive distributor of Monetti products in the United States as of the last day of 1984 — turned over to Anchor Hocking all of Melform’s inventory, records, and other physical assets, together with Melform’s trade secrets and know-how.
Several months later, in May 1985, Anchor Hocking abruptly fired the Schneid-ers. Concerned about the possible implications of this démarche for its relationship with Anchor Hocking, Monetti requested a meeting between the parties, and it was held on May 19. Reviewing the events up to and including that meeting, a memo dated June 12, 1985, from Raymond Davis, marketing director of Anchor Hocking’s food services division, to the law department of Anchor Hocking, states that “In the middle to latter part of 1984 Irwin Schneider and his company were negotiating an agreement with [Monetti and Mel-form] to obtain exclusive distribution rights on Melform’s plastic tray product line in the United States”; “later, this distribution agreement was expanded to also include Canada, the Caribbean and Central and South America”; there had been many meetings between the parties, including the meeting of May 19 (at which Davis had been present); “Exhibit A (attached) represents the summary agreement that was reached in the meeting. You will notice that I have added some handwritten changes which I believe represents more clearly our current position regarding the agreement.... Now that we have had our ‘New Management’ [i.e., the management team that had replaced the Schneiders] meeting with Monetti, both parties would like to have a written and signed agreement to guide this new relationship.” Exhibit A to the Davis memo is identical to Attachment # 1 to Steve Schneider’s memo, except that it contains the handwritten changes to which the Davis memo refers. Shortly after this memo was written, the parties’ relationship began to deteriorate, and eventually Monetti sued for breach of contract.
Illinois’ general statute of frauds forbids a suit upon an agreement that is not to be performed within a year “unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” The statute of frauds in Article 2 of the Uniform Commercial Code makes a contract for the sale of goods worth at least $500 unenforceable “unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.” The differences between these formulations are subtle but important. The Illinois statute requires that the writing “express the substance of the contract with reasonable certainty.” Frazer v. Howe, 106 Ill. 564, 574 (1883); see also Holsz v. Stephen, 362 Ill. 527, 532, 200 N.E. 601, 603 (1936); Mariani v. School Directors, 154 Ill.App.3d 404, 407, 107 Ill.Dec. 90, 92, 506 N.E.2d 981, 983 (1987). The UCC statute of frauds does not require that the writing contain the terms of the contract. Ill.Code Comment 1 to UCC § 2-201. In fact it requires no more than written corroboration of the alleged oral contract. Even if there is no such signed document, the contract may still be valid “with respect to goods ... which have been received and accepted.” § 2-201(3)(c). This provision may appear to narrow the statute of frauds still further, but if anything it curtails a traditional exception, and one applicable to Illinois’ general statute: the exception for partial performance, on which see, for example, Payne v. Mill Race Inn, 152 Ill.App.3d 269, 277-78, 105 Ill.Dec. 324, 330-331, 504 N.E.2d 193, 199-200 (1987); Grundy County National Bank v. Westfall, 13 Ill. App.3d 839, 845, 301 N.E.2d 28, 32 (1973). The Uniform Commercial Code does not treat partial delivery by the party seeking to enforce an oral contract as a partial performance of the entire contract, allowing him to enforce the contract with respect to the undelivered goods.
Let us postpone the question of partial performance for a moment and focus on whether there was a signed document of the sort that the statutes of frauds require. The judge, over Monetti’s objection, refused to admit oral evidence on this question. He was right to refuse. The use of oral evidence to get round the requirement of a writing would be bootstrapping, would sap the statute of frauds of most of its force, and is therefore forbidden. Western Metals Co. v. Hartman Co., 303 Ill. 479, 485, 135 N.E. 744, 746 (1922); R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., 606 F.2d 182, 186 n. 4 (7th Cir.1979); Bazak International Corp. v. Mast Industries, Inc., 73 N.Y.2d 113, 117-18, 538 N.Y.S.2d 503, 505, 535 N.E.2d 633, 635 (1989). The Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga.App. 792, 793, 242 S.E.2d 305, 306 (1978), is contra, but does not discuss the question and is, we think, wrong; while Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1034 (5th Cir.1982), on which Monetti also relies, is distinguishable from our case because there the writing was first held to satisfy the statute of frauds and only then was oral evidence admitted to clear up a detail, albeit a vital one — the identity of one of the parties!
Although we have cited cases from different jurisdictions, the question whether oral evidence is admissible to show that an ambiguous document satisfies the requirements of the statute of frauds is ultimately one of state law. So far as we have been able to discover, the question is uniformly assumed to be substantive rather than procedural for purposes of determining, in accordance with the Erie doctrine, whether state or federal law applies, though direct authority on the question is sparse. Lehman v. Dow, Jones & Co., 606 F.Supp. 1152, 1156 (S.D.N.Y.1985); McInnis v. A.M.F., Inc., 765 F.2d 240, 245 (1st Cir.1985) (dictum); 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4512, at pp. 194-95 (1982). We think the assumption is well founded, although the point is not crucial in this case because neither party questions the applicability of Illinois law. It is true that a statute of frauds is procedural in form and that its main proximate goal is evidentiary; it is largely based on distrust of the ability of juries to determine the truth of testimony that there was or was not a contract. 2 E. Allan Farnsworth, Farnsworth on Contracts § 6.1, at p. 85 (1990). But it is usually and we think correctly regarded as a part of contract law, not of general procedural law. Cf. Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 364 (7th Cir.1990). It is designed to make the contractual process cheaper and more certain by encouraging the parties to contracts to memorialize their agreement. The end of the statute of frauds thus is substantive (albeit the means is procedural), which makes essential aspects of the administration of the statute, such as the admissibility of oral evidence to disambiguate an ambiguous document that is contended to satisfy the statute of frauds, a matter of primary concern to the states rather than to the federal government. So Illinois law applies to the issue; and Western Metals indicates that Illinois courts would not allow oral evidence to be used to enable a vague document to satisfy the statute of frauds.
Because oral evidence was inadmissible on the question whether the documents meet the requirements of the statutes of frauds, it was proper for the judge to resolve it on motion for summary judgment. The parties agree that, if this was proper, our review is plenary. This does not follow, however, from the documentary character of the issue, Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), as the parties may believe. But in view of the parties’ agreement concerning the proper scope of our review, we need not resolve the matter, beyond noting that there is authority, illustrated by the Bazak case, for regarding the issue as one of law, not fact — and if it is an issue of law, then our review is indeed plenary.
We have two documents (really, two pairs of documents) to consider. The first is Steve Schneider’s “Topics for Discussion” memo with its “Attachment # 1.” Since “signed” in statute-of-frauds land is a term of art, meaning executed or adopted by the defendant, Weston v. Myers, 33 Ill. 424, 433 (1864); UCC § 1-201(39) and Ill. Code Comment thereto; 2 Farnsworth on Contracts, supra, § 6.8, at p. 144, Schneider’s typed initials are sufficient. The larger objection is that the memo was written before the contract — any contract — was made. The memo indicates that Schneider (an authorized representative of the defendant) agrees to the principal provisions in the draft agreement prepared by Monetti, but not to all the provisions; further negotiations are envisaged. There was no contract when the memo was prepared and signed, though it is fair to infer from the memo that a contract much like the draft attached to it would be agreed upon — if Monetti agreed to Anchor Blocking’s demand for Canada, as Monetti concedes (and the Davis memo states) it did.
Can a memo that precedes the actual formation of the contract ever constitute the writing required by the statute of frauds? Under the Uniform Commercial Code, why not? Its statute of frauds does not require that any contracts “be in writing.” All that is required is a document that provides solid evidence of the existence of a contract; the contract itself can be oral. Three cases should be distinguished. In the first, the precontractual writing is merely one party’s offer. We have held, interpreting Illinois’ version of the Uniform Commercial Code, that an offer won’t do. R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., supra, 606 F.2d at 186. Otherwise there would be an acute danger that a party whose offer had been rejected would nevertheless try to use it as the basis for a suit. The second case is that of notes made in preparation for a negotiating session, and this is another plausible case for holding the statute unsatisfied, lest a breakdown of contract negotiations become the launching pad for a suit on an alleged oral contract. Third is the case — arguably this case — where the precontractual writing — the Schneider memo and the attachment to it — indicates the promisor’s (Anchor Blocking’s) acceptance of the promisee’s (Monetti’s) offer; the case, in other words, where all the essential terms are stated in the writing and the only problem is that the writing was prepared before the contract became final. The only difficulty with holding that such a writing satisfies the statute of frauds is the use of the perfect tense by the draftsmen of the Uniform Commercial Code: the writing must be sufficient to demonstrate that “a contract for sale has been made.... The ‘futuristic’ nature of the writing disqualifies it.” Micromedia v. Automated Broadcast Controls, 799 F.2d 230, 234 (5th Cir.1986) (emphasis in original); see also American Web Press, Inc. v. Harris Corp., 596 F.Supp. 1089, 1093 (D.Colo.1983). Yet under a general statute of frauds, “it is well settled that a memorandum satisfying the Statute may be made before the contract is concluded.” Farrow v. Cahill, 663 F.2d 201, 209 (D.C.Cir.1980) (footnote omitted). And while merely because the UCC’s draftsmen relaxed one requirement of the statute of frauds — that there be a writing containing all the essential terms of the contract— doesn’t exclude the possibility that they wanted to stiffen another, by excluding writings made before the contract itself was made, the choice of tenses is weak evidence. No doubt they had in mind, as the typical case to be governed by section 2-201, a deal made over the phone and evidenced by a confirmation slip. They may not have foreseen a case like the present, or provided for it. The distinction between what is assumed and what is prescribed is critical in interpretation generally-
In both of the decisions that we cited for the narrow interpretation, the judges’ concern was with our first two classes of ease; and judicial language, like other language, should be read in context. Micromedia involved an offer; in American Web, negotiations were continuing. We agree with Professor Farnsworth that in appropriate circumstances a memorandum made before the contract is formed can satisfy the statute of frauds, 2 Farnsworth on Contracts, supra, § 6.7, at p. 132 and n. 16, including the UCC statute of frauds. This case illustrates why a rule of strict temporal priority is unnecessary to secure the purposes of the statute of frauds. Farnsworth goes further. He would allow a written offer to satisfy the statute, provided of course that there is oral evidence it was accepted. Id., n. 16. We needn’t decide in this case how far we would go with him, and therefore needn’t reexamine Bennett.
Nor need we decide whether the first memo (Schneider’s) can be linked with the second (Davis’s) — probably not, since they don’t refer to each other, Poulos v. Reda, 165 Ill.App.3d 793, 800, 117 Ill.Dec. 465, 471, 520 N.E.2d 816, 822 (1987); Southmark Corp. v. Life Investors, Inc., 851 F.2d 763, 767 n. 5 (5th Cir.1988) — to constitute a post-contract writing and eliminate the issue just discussed. For, shortly after the Schneider memo was prepared, Monetti gave dramatic evidence of the existence of a contract by turning over its entire distribution operation in the United States to Anchor Hocking. (In fact it had started to do this even earlier.) Monetti was hardly likely to do that without a contract — without in fact a contract requiring Anchor Hocking to purchase a minimum of $27 million worth of Monetti’s products over the next ten years, for that was a provision to which Schneider in the memo had indicated agreement, and it is the only form of compensation to Monetti for abandoning its distribution business that the various drafts make reference to and apparently the only one the parties ever discussed.
This partial performance took the contract out of the general Illinois statute of frauds. Unilateral performance is pretty solid evidence that there really was a contract — for why else would the party have performed unilaterally? Almost the whole purpose of contracts is to protect the party who performs first from being taken advantage of by the other party, so if a party performs first there is some basis for inferring that he had a contract. The inference of contract from partial performance is especially powerful in a case such as this, since while the nonenforcement of an oral contract leaves the parties free to pursue their noncontractual remedies, such as a suit for quantum meruit (a form of restitution), Farash v. Sykes Datatronics, Inc., 59 N.Y.2d 500, 503, 465 N.Y.S.2d 917, 918, 452 N.E.2d 1245, 1246 (1983); Robertus v. Candee, 205 Mont. 403, 407, 670 P.2d 540, 542 (1983); 2 Farnsworth on Contracts, supra, § 6.11, at p. 171, once Monetti turned over its trade secrets and other intangible assets to Anchor Hocking it had no way of recovering these things. (Of course, Monetti may just have been foolish.) The partial-performance exception to the statute of frauds is often explained (and its boundaries fixed accordingly) as necessary to protect the reliance of the performing party, so that if he can be made whole by restitution the oral contract will not be enforced. This is the Illinois rationale, Payne v. Mill Race Inn, supra, 152 Ill.App.3d at 277-78, 105 Ill.Dec. at 330-331, 504 N.E.2d at 199-200, and it is not limited to Illinois. 2 Farnsworth on Contracts, supra, § 6.9. It supports enforcement of the oral contract in this case.
This discussion assumes, however, that the contract is governed by the general Illinois statute of frauds rather than, as the district judge believed, by the UCC’s statute of frauds (or in addition to it — for both might apply, as we shall see), with its arguably narrower exception for partial performance. The UCC statute of frauds at issue in this case appears in Article 2, the sale of goods article of the Code, and, naturally therefore, is expressly limited to contracts for the sale of goods. That is a type of transaction in which a partial-performance exception to a writing requirement would make no sense if the seller were seeking payment for more than the goods he had actually delivered. Suppose A delivers 1,000 widgets to B, and later sues B for breach of an alleged oral contract for 100,000 widgets and argues that the statute of frauds is not a bar because he performed his part of the contract in part. In such a case partial performance just is not indicative of the existence of an oral contract for any quantity greater than that already delivered, so it is no surprise that the statute of frauds provides that an oral contract cannot be enforced in a quantity greater than that received and accepted by the buyer. § 2 — 201(3)(c); cf. § 2-201(1). The present case is different. The partial performance here consisted not of a delivery of goods alleged to be part of a larger order but the turning over of an entire business. That kind of partial performance is evidence of an oral contract and also shows that this is not the pure sale of goods to which the UCC’s statute of frauds was intended to apply.
This is not to say that the contract is outside the Uniform Commercial Code. It is a contract for the sale of goods plus a contract for the sale of distribution rights and of the assets associated with those rights. Courts forced to classify a mixed contract of this sort ask, somewhat unhelpfully perhaps, what the predominant purpose of the contract is. Yorke v. B.F. Goodrich Co., 130 Ill.App.3d 220, 223, 85 Ill.Dec. 606, 608, 474 N.E.2d 20, 22 (1985), and cases cited there. And, no doubt, they would classify this contract as one for the sale of goods, therefore governed by the UCC, because the $27 million in sales contemplated by the contract (if there was a contract, as we are assuming) swamped the goodwill and other intangibles associated with Melform’s very new, very small operation. Distributorship agreements, such as this one was in part, and even sales of businesses as going concerns, are frequently though not always classified as UCC contracts under the predominant-purpose test. Compare De Filippo v. Ford Motor Co., 516 F.2d 1313, 1323 (3d Cir.1975); Hudson v. Town & Country True Value Hardware, Inc., 666 S.W.2d 51, 53 (Tenn.1984); Cavalier Mobile Homes, Inc. v. Liberty Homes, Inc., 53 Md.App. 379, 394, 454 A.2d 367, 376 (1983); and WICO Corp. v. Willis Industries, 567 F.Supp. 352, 355 (N.D.Ill.1983) (applying Illinois law), with Lorenz Supply Co. v. American Standard, Inc., 419 Mich. 610, 615, 358 N.W.2d 845, 847 (1984).
We may assume that the UCC applies to this contract; but must all of the UCC apply? We have difficulty seeing why. It is not a matter of holding the contract partly enforceable and partly unenforceable, a measure disapproved in Distribu-Dor, Inc. v. Karadanis, 11 Cal.App.3d 463, 468, 90 Cal.Rptr. 231, 234 (1970). Because of the contract’s mixed character, the UCC statute of frauds doesn’t make a nice fit; it’s designed for a pure sale of goods. The general statute works better. The fact that Article 2, which we have been loosely referring to as the sale of goods article, in fact applies not to the sale of goods as such but rather to “transactions in goods,” § 2-102, while its statute of frauds is limited to “contract[s] for the sale of goods,” § 2-201(1), could be thought to imply that the statute of frauds does not cover every transaction that is otherwise within the scope of Article 2. 2 Farnsworth on Contracts, supra, § 6.6, at p. 126 and n. 5. Perhaps the contract in this case is better described as a transaction in goods than as a contract for the sale of goods, since so much more than a mere sale of goods was contemplated.
Another possibility is to interpret the UCC statute of frauds flexibly (an approach endorsed in Meyer v. Logue, 100 Ill.App.3d 1039, 1044-46, 56 Ill.Dec. 707, 710-12, 427 N.E.2d 1253, 1256-58 (1981)) in consideration of the special circumstances of the class of cases represented by this case, so that it does make a smooth fit. There is precedent for doing this. When the partial performance is not the delivery of some of the goods but part payment for all the goods, most courts will enforce oral contracts under the UCC. Sedmak v. Charlie’s Chevrolet, Inc., 622 S.W.2d 694, 698-99 (Mo.App.1981); W.I. Snyder Corp. v. Caracciolo, 373 Pa.Super. 486, 494-95, 541 A.2d 775, 779 (1988); The Press, Inc. v. Fins & Feathers Publishing Co., 361 N.W.2d 171, 174 (Minn.App.1985). Such cases do not present the danger at which the limitation on using partial performance to take the entire contract outside of the statute of frauds was aimed, that of the seller’s unilaterally altering the quantity ordered by the buyer, although they could be thought to present the analogous danger of the seller’s unilaterally altering the price the buyer had agreed to pay — by claiming that full payment was actually part payment. This case, at all events, presents no dangers of the sort the provision in question was designed to eliminate. The semantic lever for the interpretation we are proposing is that the UCC does not abolish the partial-performance exception. It merely limits the use of partial delivery as a ground for insisting on the full delivery allegedly required by the oral contract. That is not what Monetti is trying to do.
We need not pursue these interesting questions about the applicability and scope of the UCC statute of frauds any further in this case, because our result would be unchanged no matter how they were answered. For we have said nothing yet about the second writing in the case, the Davis memorandum of June 12. It was a writing on Anchor Hocking’s letterhead, so satisfied the writing and signature requirements of the UCC statute of frauds, and it was a writing sufficient to evidence the existence of the contract upon which Anchor Hocking is being sued. It is true that “Exhibit A” does not contain all the terms of the contract; it makes no reference to the handing over of Melform’s assets. But, especially taken together with the Davis memo itself (and we are permitted to connect them provided that the connections are “apparent from a comparison of the writings themselves,” Western Metals Co. v. Hartman Co., supra, 303 Ill. at 483, 135 N.E. at 746, and they are, since the Davis memo refers explicitly to Exhibit A), Exhibit A is powerful evidence that there was a contract and that its terms were as Monetti represents. Remember that the UCC’s statute of frauds does not require that the contract be in writing, but only that there be a sufficient memorandum to indicate that there really was a contract. The Davis memorandum fits this requirement to a t. So even if the partial-performance doctrine is not available to Monetti, the UCC’s statute of frauds was satisfied. And since the general Illinois statute was satisfied as well, we need not decide whether, since the contract in this case both was (we are assuming) within the UCC and could not be performed within one year, it had to satisfy both statutes of frauds. 2 Farnsworth on Contracts, supra, § 6.2, at pp. 90-91.
Our conclusion that Monetti’s suit for breach of contract is not barred by the statute(s) of frauds makes the district judge’s second ruling, refusing to allow Monetti to add a claim for promissory es-toppel, academic. The only reason Monetti wanted to add the claim was as a backstop should it lose on the statute of frauds. In light of our decision today, he does not need a backstop.
Can promissory estoppel be used to avoid the limitations that the statute of frauds places on the enforcement of oral promises? It can be argued that a party to a contract for the sale of goods should not be allowed to get around the statute of frauds merely by alleging promissory estoppel and using partial performance to establish the necessary reliance in circumstances in which the requirements for the exception in the statute of frauds for partial performance would for one reason or another not be satisfied. It can further be argued that since promissory estoppel unlike equitable estoppel is a method of establishing contractual liability, the statute of frauds should be no less applicable than if the contract were supported by consideration or a seal rather than by promissory estop-pel. A/S Apothekernes Laboratorium for Specialpraeparater v. I.M.C. Chemical Group, Inc., 725 F.2d 1140, 1142 (7th Cir.1984). On the other side it can be argued that promissory estoppel is deliberately open-ended, and should therefore remain available to overcome, in appropriate cases, possible rigidities in the statute of frauds. Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 133 N.W.2d 267 (1965). Consistent with this counterargument, we held in R.S. Bennett & Co. v. Economy Mechanical Industries, Inc., supra, 606 F.2d at 187-89, that Illinois’ version of the UCC statute of frauds was inapplicable to promissory es-toppel cases. Janke Construction Co. v. Vulcan Materials Co., 386 F.Supp. 687, 697 (W.D.Wis.1974), aff’d, 527 F.2d 772 (7th Cir.1976), reached a similar conclusion under Wisconsin’s general statute of frauds, and in affirming we cut loose promissory estoppel from contract law, thus answering the second argument in favor of applying the statute of frauds in promissory estoppel cases. Id. at 777. See also 2 Farnsworth on Contracts, supra, § 6.12, at p. 185 n. 26. We have been having second thoughts lately. Goldstick v. ICM Realty, 788 F.2d 456, 464-66 (7th Cir.1986); Evans v. Fluor Distribution Cos., 799 F.2d 364, 367-68 (7th Cir.1986). But as in Goldstick and Evans, so in this case, we need not and do not decide whether Bennett was an accurate forecast of Illinois law. Not only is the issue moot in view of our decision that the statute of frauds does not bar Monetti from enforcing the contract, but Bennett was not a case in which the plaintiff was using promissory estoppel to avoid the UCC’s provision disallowing a defense to the statute of frauds for partial performance consisting of the delivery of some but not all of the quantity allegedly contracted for orally. It is in such a case that the “end run” character of promissory estoppel appears most strongly; yet we need not and do not decide whether the appearance is so strong as to preclude resort to promissory estoppel.
Reversed and Remanded
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_genapel2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
NATIONAL BRICK & SUPPLY COMPANY, Inc., a corporation, et al., Appellants, v. William E. BAYLOR et al., Trustees of Mount Joy Baptist Church, Appellees. Abraham GRUNSTEIN, Abraham Fix, and Louis Nadelman, Partners, t/a Columbia Building Products Company, Appellants, v. William E. BAYLOR et al., Trastees of Mount Joy Baptist Church, Appellees.
Nos. 16338, 16339.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 23, 1961.
Decided Feb. 1, 1962.
Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Fried-lander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief for appellant National Brick & Supply Co., Inc., in No. 16338, argued for all appellants in both cases.
Mr. George H. Windsor, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellees.
Mr. George Greenberg, Washington, D. C., was on the brief for appellants in No. 16339.
Mr. Dexter M. Kohn, Washington, D. C., was on the brief for appellant Hudson Supply & Equipment Co., in No. 16338.
Before Edgerton, Bazelon and Bastían, Circuit Judges.
EDGERTON, Circuit Judge.
Areawide Building Corporation contracted with appellees, the trustees of Mount Joy Baptist Church, to make alterations and additions to the church building, payment to be made in installments as the work progressed. Areawide abandoned the work after several payments had been made. Article 10 of the contract provided: “Should the Contractor neglect to prosecute the work properly, or fail to perform any provision of the contract, the Owner, after seven days’ written notice to the Contractor, may. without prejudice to any other remedy he may have, * * * terminate the contract and take possession of all materials, tools, and appliances and finish the work by such means as he sees fit, and if the unpaid balance of the contract price exceeds the expense of finishing the work, such excess shall be paid to the Contractor * * Not long after the church learned that Areawide had abandoned the work, the church exercised its right to terminate the contract.
Appellants are subcontractors suing to enforce mechanic’s liens. They filed these liens within three months after Areawide abandoned the work and are entitled to share in any sums the church may owe Areawide, the prime contractor. D.C.Code § 38-103 (1961). The District Court ruled that the church’s expense of finishing the work exceeded the balance due from the church to the prime contractor and therefore appellants could not enforce their liens.
After Areawide abandoned the work, but before the church learned that fact and terminated the contract, one Bortolussi, a subcontractor trading as Washington Heating & Plumbing Company, who had nearly completed his work and received most of his pay, filed a mechanic’s lien for the value of radiation equipment in place. He afterwards removed the equipment.
The removal was tortious. Bortolussi was chargeable with notice of the terms of the contract between Area-wide and the church. That contract cannot be thought to authorize either the contractor or a subcontractor to remove and not replace materials, particularly when, as in this case, the “trim-draw” progress payment had been made in reliance on the presence of the equipment. By filing a lien, Bortolussi recognized the church’s superior right to immediate possession. He testified that he removed the equipment with Areawide’s permission. But this is not here material, because Areawide could not bind the church.
The church was entitled to require Bortolussi to replace what he had wrongfully removed or pay damages. Instead of demanding that he do so, the church made a new contract with him by which it undertook to pay him and did pay him for replacing the equipment. There is no showing that he was insolvent or that, for any reason, the church could not have enforced its rights against him if it had tried to do so. In the absence of some such showing, the amount that the church paid Bortolussi for doing what he was already bound to do should not be regarded as a part, because it was not a reasonably necessary part, of “the expense of finishing the work”. The church is therefore not entitled, as against the appellant lien holders, to deduct the amount in question from the unpaid balance due from the church to Areawide. It results that there is a balance in which appellants are entitled to share. D.C.Code § 38-106 makes it the owner’s duty to retain for subcontractors who have filed liens, payments that become due to the contractor. Under the lien law, appellant subcontractors are entitled to the benefit of the contract between Areawide and the church. Cf. Riggs Fire Ins. Co. v. Shedd, 16 App.D.C. 150, 158 (1900).
The District Court rightly held that the lienors were not entitled to satisfy their liens out of sums which the church paid Areawide before the liens were filed and before the church learned that Areawide had abandoned the contract.
The judgment is vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
Vacated and remanded.
. He later released this lien. He after-wards filed a second lien which the District Court found untimely. No appeal was taken from that decision.
. The equipment seems to have been subject to a conditional sales contract between Bortolussi and his supplier.
. D.C.Code § 38-107 (1961) entitles subcontractors to demand from the owner a statement of the terms of the prime contract. “The subcontractor should acquaint himself with the terms and conditions of the building contract. * * * In the absence of anything to the contrary, we must assume that the plaintiff possessed this information.” Winter v. Hazen-Latimer Co., 42 App.D.C. 469, 474 (1914).
. D.C.Code § 38-101 (1961).
. Cf. Carey v. Cyr, 150 Me. 405, 113 A.2d 614 (1955); Van Winkle v. Crowell, 146 U.S. 42, 50-51, 13 S.Ct. 18, 36 L.Ed. 880 (1892).
. The District Court said “This contract was not for work which had already been performed * * But this is contradicted by the court’s earlier finding that “Bartolussi removed certain materials, some of which had been installed, from the job site” and by the record. The new contract was to finish the job, which involved not only new work but also replacing the materials which had been installed and afterwards removed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
METZGER v. SPECTOR MOTOR SERVICE, Inc., et al.
No. 211.
Circuit Court of Appeals, Second Circuit.
May 5, 1941.
Albert L. Lawrence, of Herkimer, N. Y., for appellant.
David B. Sugarman, of Syracuse, N. Y. (Arthur W. Burrows, of Syracuse, N. Y., on the brief), for appellees.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
PER CURIAM.
This is an appeal from the judgment of the District Court for the Northern District of New York, entered upon the verdict of the jury. The action was for personal injuries due to a collision between the defendant’s motor car and a car which the plaintiff was driving. At the conclusion of the evidence, the plaintiff did not ask for the direction of a verdict, but after the jury had brought in a verdict in favor of the defendants, moved to set it aside as against the weight of evidence. This the court denied and its order is the only question raised upon this appeal.
The' jury could have found the following facts. On a rainy night in January the plaintiff, driving his car along the highway between Utica and Herkimer in the State of New York, was brought to a stop by a stalled motor truck on his side of the road. While he was waiting for other cars to pass which were coming in the opposite direction, the defendant’s truck ran into him from behind, causing the injuries in question. The excuse of the defendant’s driver was that, although he had on his “fog lights,” they did not light up the road far enough ahead for him to see the plaintiff’s car before it was too late. He had had to pull over to the right side of the road to let a car pass, whose bright lights blinded him and when he pulled back into his side of the road, he was within a few feet of plaintiff’s car. He was then moving at not more than sixteen or eighteen miles an hour.
The plaintiff’s theory is that the law of New York makes it negligent without more to drive a motor car at a speed such that an obstruction ahead cannot be seen in time to stop. Albertson v. Ansbacher, 102 Misc. 527, 169 N.Y.S. 188. That case did not profess to lay down so absolute a rule, and we can find no evidence that it exists in New York; and indeed, the defendants’ explanation, if accepted, made a substantial variant. The denial of a motion to set aside a verdict presents a different question upon appeal from the denial of a motion for a directed verdict at the close of the evidence; except in the most unusual circumstances it is not appealable. Crumpton v. United States, 138 U.S. 361, 363, 11 S.Ct. 355, 34 L.Ed. 958; Van Stone v. Stilwell & Bierce Mfg. Co., 142 U.S. 128, 134, 12 S.Ct. 181, 35 L.Ed. 961; Moore v. United States, 150 U.S. 57, 61, 62, 14 S.Ct. 26, 37 L.Ed. 996; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 248, 60 S.Ct. 811, 84 L.Ed. 1129; O’Donnell v. New York Transportation Co., 2 Cir., 187 F. 109, 110. Certainly there was nothing in this case which would justify us in upsetting the discretion of the trial judge.
Appeal dismissed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NEWSPAPER PRINTING CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 4465.
Circuit Court of Appeals, Third Circuit.
Feb. 5, 1932.
Henry Oliver Evans and Oliver Evans, both of Pittsburgh, Pa., for petitioner.
G. A. Youngquist, Asst. Atty. Gen., and John H. MeEvers and Sewall Key, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
Before DAVIS, Circuit Judge, and THOMSON, and WATSON, District Judges.
THOMSON, District Judge.
The facts of this case are entirely clear, and the conclusion which should be reached is largely one of law.
Prior to January, 1923, there were five competing publishing companies in Pittsburgh: the Newspaper Printing Company, the Press Publishing Company, the Post Publishing Company, the Dispatch Publishing Company, and the Leader Publishing Company. The three first might be designated as taxpayers, the latter as competitors. It being the opinion of the taxpayers that there were more newspapers in the city than the revenues justified, they decided to purchase the. business and assets of the Dispatch and Leader, which we name as competitors. To accomplish this end, the three first named companies organized the Union Publishing Company, a corporation of the state of Delaware, with a capital stock of $20,000, of which each of the three named companies subscribed to one-third. The Union Publishing Company then issued bonds in the sum of $1,590,000, each of the three subscribers to its stock guaranteeing the payment of $530,000 of these bonds.
On February 13,1923, the Union Publishing Company bought out the competitors, except cash and accounts receivable, and immediately discontinued the publication of the papers so acquired. The company then proceeded to liquidate the tangible assets, the money procured thereby being applied to its borrowed indebtedness. On December 31, 1923, the company transferred the remaining assets to its creditors, the value being applied on its borrowed indebtedness, which left a balance of $1,315,390.48 unpaid, for which each of the three above named companies was liable as a guarantor to the extent of one-third. The petitioner, the Newspaper Printing Company, deducted this one-third, or $438,460.14, from gross income in its tax return for 1923, as a fixed accrued liability as of December, 1923. This claim was disallowed by the Commissioner, and his action was affirmed by the Board of Tax Appeals. From this action, the present appeal was taken.
In determining the question before the court, there are certain admitted facts, which seem to us, not only material, but vital. The purpose and object of the plan is conceded. E. R. Stowl, manager of the Union Publishing Company testified (R. 53): “The object of the Union Publishing Company was simply to dispense with these two newspapers on the theory that there were more newspapers in the town than could live from the income which was derived from possible newspaper earnings.”
In the stipulated facts (R. 50) it is stated: “The purpose of said Newspaper Printing Company, Press Publishing Company, and Post Publishing Company in causing said Union Publishing Company to be created was to provide an agency by means of which the papers known as the Leader and the Dispatch could be purchased and the publications of those papers discontinued.”
Thus there can be no question that the Union Publishing Company was the mere agent for the carrying out of the plan of purchase and eliminating from competition the Dispatch and Leader. The plan was duly considered by the interested parties as beneficial to the petitioner.' This is shown by the resolution of the directors of that body at a meeting held on February 13, 1923, authorizing the company to guarantee the bonds. The material part of the resolution is as follows: “Whereas the purchase of the property and assets of the Dispatch Publishing Company and the Leader Publishing Company by the Union Publishing Company will enure greatly to the benefit of the business of this Company and also will benefit it as a stockholder of the Union Publishing Company.”
The new company was formed in February, 1823. It had no assets or business of its own. On February 13th, the petitioner authorized the guaranteeing of the bonds, and on the same day, the two newspapers were purchased and publication discontinued. These facts conclusively indicate that the purchase price, the discontinuing of publication, the issuance of bonds, etc., were agreed upon in advance, and simultaneously executed and carried out.
In applying taxing statutes, courts must look to the substance, rather than the form, of a transaction. United States v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180; McCaskill Co. v. United States, 216 U. S. 504, 30 S. Ct. 386, 54 L. Ed. 590; and many other cases which might be cited.
The companies who formed the Union Publishing Company, looking over the field, decided that it was wise and worth the cost, to buy out and discontinue the business of the competitors. To accomplish this end, the Union Publishing Company was created as their agent. This agency accomplished the desired object at a cost of $1,315,390.48, plus the amount of capital stock of $20,000. Acting merely as the agent to carry out the transaction, the acts of the agent clearly became the acts of the principals. Thus the cost to the agent of eliminating the undesirable competition was in fact the cost to the principal. While the system may be considered somewhat involved, it is easily understood. Ultimately, the cost fell where it properly belonged—upon the principals. The simple question then arises whether the cost of eliminating competition can constitute a loss within the meaning of section 234 (a) (4) of the Revenue Act of 1921 (42 Stat. 255); or whether the value of the thing procured, that is, the elimination of competition, is a capital asset to be carried to capital account. That the cost of eliminating competition is a capital asset has been established by a long line of decisions of the Board of Tax Appeals. In this case it appears to be clear that the taxpayer was 'willing to pay the amount of its claimed loss for the benefits to be derived from the elimination of the two competitors. The value of this intangible asset, which must be presumed to be measured by its cost, should have been credited to the capital account and carried as a capital asset. The fact that business men, perhaps of wide experience, were willing to pay out the money in return for the gain, clearly negatives any idea that they contemplated that the gain would be less than the expenditure.
In this case, there were purchased both the tangible assets and the good will, while the tangible assets only were sold. What the taxpayer here considered a loss is represented by the good will, which he did not sell and now has.
To us, it is therefore clear that the taxpayer did not sustain a loss within the meaning of section 234 (a) (4) of the Revenue Act of 1921; that the expenditure was neither an ordinary or a necessary expense in carrying on the taxpayers’business. Section 234 (a) (1).
We therefore affirm the decision of the Board of Tax Appeals.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HOBBS v. SWENSON
No. 6481.
United States Court of Appeals Fourth Circuit.
Argued Oct. 6, 1952.
Decided Oct. 8, 1952.
Joseph Hobbs, Jr., pro se.
Ambrose T. Hartman, Sp. Asst. At'ty. Gen. of Maryland, (Hall Hammond, Atty. Gen. of Maryland, on brief), for appellee.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas corpus. O-n January 7, 1947 appellant pleaded-guilty in a Maryland state court to a charge of robbery and was sentenced to a term of imprisonment. He contends that counsel were not appointed to advise him, that he was not allowed to present witnesses in his behalf and that he was not allowed to question the -witnesses against him. Appellant has repeatedly made application for habeas corpus to the state courts which have been denied and the Supreme Court of the United States .has denied certiorari. State ex rel. Hobbs v. Warden, Md., 70 A.2d 814, Hobbs v. Warden, Md., 80 A.2d 38, Id., 341 U.S. 936, 71 S.Ct. 851, 95 L.Ed. 1364. It appears also that prior applications have been made to both United States Judges in the District of Maryland and have been denied by them. The application from the denial of which this appeal was taken presents no- such unusual circumstances as would have warranted the District Judge in issuing a writ of habeas corpus in such situation. The application appears . to be entirely without merit; but we are without jurisdiction to consider the appeal because there is no certificate of probable cause as required by 28 U.S.C.A. § 2253. Bernard v. Brady, Warden, 4 Cir., 164 F.2d 881; Berman v. Swenson, Warden, 4 Cir., 177 F.2d 717; Hansen v. Warden, 4 Cir., 198 F.2d 470.
Appeal dismissed.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_threejudgefdc
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
RED BALL MOTOR FREIGHT, INC., et al. v. SHANNON et al., doing business as E. & R. SHANNON.
No. 406.
Argued April 28, 1964.
Decided June 1, 1964
Amos M. Matheivs argued the cause for appellants in No. 406. With him on the briefs were Phillip Robinson, Charles D. Mathews, Roland Rice and John S. Fessenden.
Robert W. Ginnane argued the cause for the United States et al. in No. 421. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Elliott Moyer and Fritz R. Kahn.
Walter C. Wolff, Jr. argued the cause and filed a brief for appellees in both cases.
Briefs of amici curiae, urging reversal, were filed by Robert E. Redding for the Transportation Association of America, by James E. Wilson for the Common Carrier Conference — -Irregular Route of the American Trucking Associations, Inc., and by Joseph E. Keller and William H. Borghesani, Jr. for the Private Carrier Conference, Inc.
Together with No. 421, United States et al. v. Shannon et al., doing business as E. & R. Shannon, also on appeal from the same court.
Mr. Justice Brennan
delivered the opinion of the Court.
The Interstate Commerce Act provides that it is unlawful for any person engaged in a business other than transportation to “transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.” §203 (c), 49 U. S. C. § 303 (c). Appellees deal in livestock and commodities from a place of business in San Antonio, Texas. They make deliveries in their own trucks to customers in Louisiana, and buy sugar at Supreme, Louisiana, which they backhaul 525 miles for resale to customers in San Antonio. The Interstate Commerce Commission held that this backhaul was not exempt under § 203 (c) as “transportation . . . within the scope, and in furtherance, of a primary business enterprise . . of appellees, but was “conducted with the purpose of profiting from the transportation performed, and, as such, constitutes for-hire carriage for which operating authority from this Commission is required.” 81 M. C. C. 33/, 347. A three-judge court in the District Court for the Western District of Texas set aside the ICC order. 219 F. Supp. 781. We noted probable jurisdiction. 375 U. S. 901. We affirm.
Section 203 (c) was designed explicitly to authorize the ICC to eliminate transportation which, though carried on in the guise of private carriage, was in effect for-hire carriage, and thus might lawfully be carried on only by an authorized common or contract carrier. Before the enactment of § 203 (c) the ICC was able to reach such abuses by interpreting § 203 (a) (17), 49 U. S. C. § 303 (a) (17), so as to exclude such “pseudo-private” carriage from its definition of a “private carrier of property by motor vehicle” as a person, not a “common” or “contract” carrier, who transports property of which he “is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.” Many of the cases involved nonauthorized carriers in the transportation business who resorted to transparent “buy-and-sell” devices to evade ICC regulation. A typical buy-and-sell arrangement is one under which the carrier “buys” property at a shipping point, transports it to a delivery point and there “sells” it to the real purchaser, the “profit” to the carrier amounting to the price of the transportation between the two points. Similar evasions through the use of spurious buy-and-sell agreements were found in cases where property was transported in trucks regularly used by noncarrier businesses to make pickups and deliveries. The ICC was faced with the necessity of determining on the facts of each case whether the transportation constituted private carriage beyond the scope of ICC economic regulation, or for-hire transportation subject to all relevant provisions of the Act. In other words, here, as in United States v. Drum, 368 U. S. 370, 374, in which we dealt with another aspect of the “pseudo-private” carriage problem, the ICC has also “had to decide whether a particular arrangement gives rise to that ‘for-hire’ carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the [noncarrier’s] interest . . . should prevail.”
In the course of discriminating between this pseudo-private carriage and that transportation which was in fact in furtherance of a noncarrier business, the ICC developed the so-called “primary business” test. This test was first enunciated by the full Commission in Lenoir Chair Co., 51 M. C. C. 65, ail’d, sub nom. Brooks Transportation Co. v. United States, 93 F. Supp. 517, aff’d, 340 U. S. 925. A chair manufacturer delivered some of its products in its own trucks. Whenever possible, it also used the vehicles to backhaul manufacturing materials for use and processing in its own plant. The ICC concluded, 51 M. C. C., at 76, that the delivery of goods and the backhaul were lawful private carriage because undertaken “as a bona fide incident to and in furtherance of [its] primary business . . . The governing standard was stated as follows, id., at 75:
“If the facts establish that the primary business of an operator is the supplying of transportation for compensation then the carrier’s status is established though the operator may be the owner, at the time, of the goods transported and may be transporting them for the purpose of sale. ... If, on the other hand, the primary business of an operator is found to be manufacturing or some other noncarrier commercial enterprise, then it must be determined whether the motor operations are in bona fide furtherance of the primary business or whether they are conducted as a related or secondary enterprise with the purpose of profiting from the transportation performed. In our opinion, they cannot be both.”
The ICC believed, however, that § 203 (a) (17) was not sufficiently explicit, particularly since decisions of some lower courts after Brooks raised doubts whether a truck operator could be found to be an unauthorized “for-hire” carrier in the absence of some affirmative showing that his operations brought him within the definitions of common or contract carriage. Consequently the Commission sought additional legislation. The original ICC bill in this area would have amended the definition of “private carrier” in § 203 (a) (17) to prohibit the buy-and-sell device employed by pseudo-private carriers as a subterfuge to avoid regulation. See S. 1677, H. R. 5825, 85th Cong., 1st Sess. This was withdrawn, however, in favor of a more broadly phrased provision, sponsored by the Transportation Association of America, which encompassed not only buy-and-sell devices, but also similar subterfuges which might be employed to engage in unauthorized for-hire transportation. The second clause of § 203 (c) is substantially the TAA proposal.
The 1958 amendment appears on its face to codify the primary business test as the standard for determining whether a particular carrier is engaged in a private or for-hire operation. The appellants argue, however, that the amendment was intended to impose a broader limitation in the case of backhaul operations of the kind engaged in by appellees. The United States urges in its brief that Congress in 1958 was particularly concerned with the diversion of traffic from regulated carriers by backhauling operations, and that one object of the 1958 amendment was “to make plain that the purchase and sale of goods solely to take advantage of available backhaul capacity cannot qualify as a 'primary business enterprise (other than transportation).’ ” We understand this argument to be that Congress in effect enacted a per se test outlawing trucking operations limited to backhaul capacity without inquiry into whether that operation was undertaken pursuant to a bona fide noncarrier business enterprise. We find no support in either the words of the amendment or its legislative history for putting that gloss upon the amendment. On the contrary, we are persuaded that Congress meant only to codify the primary business test which, as applied by the ICC, requires an analysis of the backhaul operation in the factual setting of .each case.
The legislative history fully supports this view. The ICC Chairman, speaking in support of the TAA amendment, expressly stated that, in his view, its effect would be to “incorporate the primary business test into the statute.” Similarly, the President of TAA, speaking directly to the backhaul problem, said that “Our proposal . . . would affect . . . the carrier who delivers his own goods in one direction, as a legal private carrier, but then resorts to the buy-and-sell practice to get a return load.” The Senate and House Reports, while less crystal clear, nevertheless reveal no purpose beyond codification of the Brooks test. Thus the Senate Report states that the amendment “accurately reflects the holding in the Brooks case.” Although the House Report includes a discussion of the backhaul problem in language which tracks the statement in the ICC 1953 Annual Report — where the Commission first directed the attention' of Congress to the problem of buy-and-sell arrangements — the House Report concludes: “There is no intention on the part of this Committee in any way to jeopardize or interfere with bona fide private carriage, as recognized in the Brooks case.” Moreover, the managers of the bills in both Senate and House gave assurances that the object of the amendment was to incorporate the primary business test into positive law. No application of the primary business test by the ICC or the courts gave conclusive effect to backhauling. The critical determination made in each case was between spurious buy-and-sell arrangements, whether or not as part of a backhaul, and a true wholesaling operation utilizing the operator’s own trucks. Backhauls were treated as merely one aspect of the buy-and-sell problem, since the presence of backhaul capacity presents a special temptation to indulge in pseudo-private carriage.
We therefore conclude that § 203 (c) merely codifies the primary business test, and embodies no outright prohibition of backhauling practices. The statutory scheme recognizes that mere availability and use of backhaul capacity may in particular cases be completely consistent with the bona fide conduct of a noncarrier business. Thus the question in this case is a narrow one: whether, applying the standards developed under the primary business test, appellees’ backhauling of sugar was within the scope, and in furtherance, of a primary, noncarrier business.
In developing and applying the primary business standard, the ICC has elaborated criteria characteristic of the spurious buy-and-sell device. Among these are the large investment of assets or payroll in transportation operations; negotiating the sale of goods transported in advance of dispatching a truck to pick them up; direct delivery of the transported goods from the truck to the ultimate buyer, rather than from warehoused stocks; solicitation of the order by the supplier rather than the truck owner; and inclusion in the sales price of an amount to cover transportation costs.
We are not persuaded from our examination of the record that there is sufficient evidence to support the ICC’s conclusion that the appellees’ sugar operation was for-hire transportation and not transportation within the scope, and in furtherance, of appellees’ noncarrier business enterprise. The ICC found that appellees “have long been buying and selling certain commodities and in connection therewith transporting them to purchasers, in bona fide furtherance of their primary business, as a dealer in those commodities.” 81 M. C. C., at 345. The ICC found further that “The more usual arrangement under which [appellees] operate . . . appears to be one in which the [appellees] have no preexisting sugar order, but buy with the intention of selling later either en route or after the transportation is accomplished. This procedure is ordinarily coordinated with a backhaul, and the purpose of their sugar dealings is the generation of sugar shipments which they can transport as return lading for their trucks which are moving in the opposite direction.” 81 M. C. C., at 346. But these findings, on this record, are consistent with an operation “within the scope, and in furtherance, of a primary business enterprise.” Appel-lees began their business in 1934 as dealers in livestock. They gradually added a feed mill and the buying and selling of corn, oats, wheat, bran, molasses, salt and fertilizer. They added sugar in 1954. Moreover, in addition to the absence of the element — usually found in spurious buy-and-sell arrangements — of obtaining orders for a commodity (in this case sugar) before purchasing it, other indicia are absent. Appellees’ assets are not in large part composed of transportation facilities, nor is transportation a major item of expense; appellees bear the full risk of damage in transit and, since they sell at market price, also of loss in value due to price changes; they buy the sugar on credit with a discount for payment in 10 days, and sell on the same terms; their sugar accounts receivable at the date of hearing exceeded $10,000, and amounted to $20,000 or $30,000 during the previous year. It is true that they warehoused only a small stock of sugar and that generally the trucks delivered the sugar directly to buyers upon, or within a day or two after, arrival in San Antonio. Appellees offered an entirely reasonable explanation for this, however: sugar is a perishable commodity, the preservation of which apparently requires air conditioning facilities with which their warehouse is not equipped; the ICC offered nothing to the contrary. And the ICC offered no evidence that other sugar dealers in San Antonio conducted their businesses differently from appellees. It is also true that since the motor carrier rate for transporting sugar from Supreme is 69 cents, and the rail rate $1.09 per hundred pounds, appellees could not have conducted the sugar business but for the availability of the backhaul capacity of their trucks. This shows no more than that appellees were able to make efficient use of their equipment; on these facts it does not prove, as the ICC found, that the “transportation ... is, with respect to their primary business of buying and selling livestock and certain other commodities, a related or secondary enterprise conducted with the purpose of profiting from the transportation performed . . . 81 M. C. C., at 347. We agree with the District Court that, rather, “The record clearly indicates that [appellees] are in a general mercantile business buying and selling many items, including sugar.” 219 F. Supp., at 782. As such, on the facts shown, their purchase of sugar at Supreme to provide a backhaul in connection with outbound movements of livestock and other commodities from San Antonio is within the scope, and in furtherance, of their primary general mercantile business enterprise.
Affirmed.
Section 203 (c), as added in 1957, 71 Stat. 411, provided in pertinent part:
. .no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce . . . unless there is in force with.respect to such person a certificate or a permit issued by the Commission authorizing such transportation.”
In 1958, 72 Stat. 574, the section was amended to add the provision here involved providing,
“nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.”
The 1957 version of § 203 (c) was enacted after the examiner submitted his report but as amended in 1958 was part of the Interstate Commerce Act when Division 1 of the Commission served its report.
Appellees’ action was brought pursuant to 28 U. S. C. §§ 1336, 1398. The statutory three-judge court was convened under 28 U. S. C. § 2325.
See, e. g., Lyle H. Carpenter, 2 M. C. C. 85; B. E. Farnsworth, 4 M. C. C. 164; Thomas Stanley Redding, 7 M. C. C. 608; ICC v. Tank Car Oil Corp., 151 F. 2d 834 (C. A. 5th Cir.).
See, e. g., T. J. McBroom, 1 M. C. C. 425; Triangle Motor Co., 2 M. C. C. 485. Cf. Congoleum-Naim, Inc., 2 M. C. C. 237.
See, e. g., ICC v. Woodall Food Prods. Co., 207 F. 2d 517 (C. A. 5th Cir.); Taylor v. ICC, 209 F. 2d 353 (C. A. 9th Cir.). See the discussion of Taylor in the Commission’s Sixty-eighth Annual Report (1954), p. 82.
The Commission pressed for amendments in its Annual Reports from 1953 through 1957: 1953 Report, p. 55; 1954 Report, p. 5; 1955 Report, p. 99; 1956 Report, p. 2; 1957 Report, pp. 137-138.
In amending §203 (c) rather than the definitional sections, the TAA proposal also met the protests of private carriers who opposed ICC’s proposal on the ground that it might be construed to throw doubt on the Brooks test, and unduly restrict the scope of private carriage. See Remarks of Frazor T. Edmondson, Private Truck Council of America, Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1384, 85th Cong., 1st Sess., 163 (1957); Remarks of R. J. Van Liew, Private Carrier Conference, American Trucking Associations, id., at 275.
See Remarks of Chairman Clarke, Hearings before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce on S. 1384, 85th Cong., 1st Sess., 13, 19 (1957).
See Statement of Mr. Baker, President, Transportation Association of America, id., at 244, 246.
S. Rep. No. 1647, 85th Cong., 2d Sess., 5 (1958).
In its 1953 Annual Report the Commission said (p. 55):
“Merchandising by motortruck, whether actual or pretended, over long distances is increasing to such an extent that it is becoming a major factor in the transportation of freight between distant points. Manufacturers and mercantile establishments, which deliver in their own trucks articles which they manufacture or sell, are increasingly purchasing merchandise at or near their point of delivery and transporting such articles to their own terminal for sale to others. Such transportation is performed for the purpose of receiving compensation for the otherwise empty return of their trucks. Sometimes the purchase and sale is a bona fide merchandising venture. In other cases, arrangements are made with the consignee of such merchandise for the 'buy-and-sell' arrangement in order that the consignee may receive transportation at a reduced cost.” Compare H. R. Rep. No. 1922, 85th Cong., 2d Sess., 18 (1958).
See id., at 19.
See 104 Cong. Rec. 12535-12536 (1958) (House); 104 Cong. Rec. 10818 (1958) (Senate).
See Virgil P. Stutzman, 81 M. C. C. 223, 226; Joseph V. Hofer, 84 M. C. C. 527, 540.
See Lyle H. Carpenter, 2 M. C. C. 85, 86; Thomas Stanley Redding, 7 M. C. C. 608, 609; Jay Cee Transport Co., 68 M. C. C. 758, 759; Church Point Wholesale Beverage Co., 82 M. C. C. 457, 459, aff'd, sub nom. Church Point Wholesale Beverage Co. v. United States, 200 F. Supp. 508 (D. C. W. D. La.).
See L. A. Woitishek, 42 M. C. C. 193; Jay Cee Transport Co., supra; William Stewart, 89 M. C. C. 281, 286.
See Subler Transfer, Inc., 79 M. C. C. 561, 565; Riggs Dairy Express, Inc., 78 M. C. C. 574, 575-576; Donald L. Wilson, 82 M. C. C. 651, 661.
See Riggs Dairy Express, Inc., supra.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.