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What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
CAMPAGNA-TURANO BAKERY, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 79-2355.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 8, 1980.
Decided Oct. 3, 1980.
Rehearing Denied Oct. 29, 1980.
Stephen Gray, Tax Division, Dept, of Justice, Washington, D. C., for defendant-appellant.
Louis W. Levit, Chicago, Ill., for plaintiff-appellee.
Before SWYGERT and SPRECHER, Circuit Judges, and DUMBAULD, Senior District Judge.
Senior District Judge Edward Dumbauld of the Western District of Pennsylvania is sitting by designation.
SPRECHER, Circuit Judge.
This case presents the question of whether a debtor is entitled to costs and attorneys’ fees when it brings an interpleader action in which the amount the debtor owes is insufficient to satisfy federal tax liens when the federal tax liens attached after the contract creating the debt but before the filing of the interpleader. We hold that the interpleading debtor may not recover its costs and attorneys’ fees at the expense of the tax liens.
I
" In November, 1974, the Campagna-Turano Bakery, Inc. (“Campagna”) entered into a contract to purchase office furniture, bakery equipment, and store contents from the Yamo Baking Company (“Yamo”). The purchase price was $60,000; $30,000 was paid in cash to Yamo upon execution of the contract and the remaining $30,000 was payable in 30 monthly installments of $1,000. After having made four payments of $1,000, Campagna ceased paying Yamo, leaving a balance due of $26,000. In December, 1975, Campagna filed a complaint interpleading several defendants, including the United States, who might have claims superior to Yamo’s to the $26,000 still owed by Campagna. The United States had duly recorded two series of tax liens against Yamo: $22,997.23 in liens (Lien 1) recorded prior to the November, 1974, contract, and $8,842.58 in liens (Lien 2), recorded after the November, 1974, contract but prior to Campagna’s December, 1975, interpleader action.
In the interpleader action, the District Court awarded $22,997.23, the amount of Lien 1, to the United States. The court awarded $3,002.77 to Campagna as costs and attorneys’ fees. These awards equalled the $26,000 still owed by Campagna. The government argues that the District Court could not award an amount for costs and attorneys’ fees while valid tax liens remained outstanding. We agree, and reverse.
II
If any taxpayer fails to pay a tax after notice and demand, 26 U.S.C. § 6321 (1954) creates a lien on all property belonging to that taxpayer. This tax lien becomes effective immediately and, upon notice, has priority over all other claims to the lien-encumbered property, except those claims enumerated in § 6323.
There is no dispute that the first tax lien, securing $22,977.23, is superior to Campagna’s claim for costs and attorneys’ fees. Notice of the lien was given prior to the November, 1974, contract. But Campagna argues that the second lien, filed after the contract, is not superior to its claim for costs and attorneys’ fees.
The Campagna argument is as follows. Lien 2 could only attach to such property as Yamo then owned. But Yamo did not “own” the $26,000 owed to it from Campagna: it merely owned a “non-negotiable chose in action” for the balance due on the purchase contract. Thus, the argument continues, the government, by virtue of its lien, acquired a status similar to that of a garnishee and could assert only those rights which Yamo could have asserted. Yamo certified in the November, 1974, contract that all of its property had been free and clear and that all taxes were paid or would be paid within thirty days. Since Yamo violated that contractual certification, Campagna argues that it would have the right to offset the expense of the interpleader against the debt otherwise due to Yamo. Thus, the argument concludes, if the government must stand in the shoes of Yamo, Campagna should have the right to offset the expense of the interpleader against the government’s Lien 2.
Campagna’s argument is creative, but it is not the law. The law is that a court may not diminish the amount available for satisfaction of a federal tax lien by awarding costs and attorneys’ fees to an interpleading plaintiff. Section 6323 of the Federal Tax Lien Act of 1966 is the exclusive source of exceptions to the priority of federal tax liens. Unfortunately for Campagna, § 6323 creates no exception to the superiority of federal tax liens for the claims of inter-pleading plaintiffs who incur expenses for court costs and attorneys’ fees.
Not only does § 6323 not provide a relevant exception, but the claim raised by Campagna is similar to that raised by inter-pleading plaintiffs but rejected in a plethora of cases. In United States v. Liverpool & London Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268 (1955), the issue before the Supreme Court required a determination of priority between federal tax liens and a garnishment lien. The garnishee had filed suit to have priority established and then requested costs and attorneys’ fees. The Supreme Court first found that the federal tax lien was superior. It then held that costs and attorneys’ fees could not be awarded prior to satisfaction of the tax liens.
The Supreme Court reached a similar result in United States v. R. F. Ball Construction Co., 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510 (1958). There, the Court summarily reversed a decision awarding costs and attorneys’ fees to an interpleading plaintiff. The Court held that the Liverpool & London decision controlled claims by interpleaders for costs.
This court, in Bjork v. United States, 486 F.2d 934 (7th Cir. 1973), reached a result compatible with the Supreme Court’s decisions in Liverpool & London and in Ball. Finding that a federal tax lien was valid and had attached, this court held that the tax lien necessarily precluded an award of costs and attorneys’ fees to an interpleading plaintiff unless there was some amount remaining after satisfaction of the tax lien.
These and other decisions in the Tax Court and in every circuit which has considered the issue have consistently held that an interpleading plaintiff cannot be awarded costs and attorneys’ fees when such an award would diminish the amount available to satisfy a federal tax lien. Campagna does not even address these cases or attempt to distinguish the facts in its situation from this clear line of authority. But ignoring precedent will not make the cases go away.
Ill
Campagna’s primary argument is that the government’s tax lien attached only to a chose in action-not to the amount of $26,000 still due to Yamo-and that costs and attorneys’ fees can be an offset against the government’s lien. But allowance of such an offset was specifically rejected by the Supreme Court in United States v. Pioneer American Ins. Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963). In Pioneer, a mortgage contract between a defaulting taxpayer and his mortgage company provided that the mortgagee would be entitled to its costs and attorneys’ fees if the taxpayer-mortgagor defaulted on his payments. After such a default did occur, the United States secured a § 6323 tax lien against the mortgaged property. The United States conceded that its tax lien was subordinate to the prior mortgage but contended, however, that its tax lien was superior to the mortgagee’s claim for costs and attorneys’ fees out of the remaining proceeds from the sale of the mortgaged property. The United States argued that the mortgagee’s claim for its costs and attorneys’ fees could not become choate until after they had been incurred and this per se did not occur until after the tax lien attached. The Supreme Court agreed, holding that the claim for attorneys’ fees was necessarily inchoate at least until the tax liens attached and that the tax liens must have priority.
Campagna’s situation is similar to the situation in Pioneer. Campagna filed its interpleader complaint in December, 1975. By that time, federal tax liens in excess of the $26,000 due to Yamo had attached and had been duly recorded. Thus, well before Campagna incurred any expenses in prosecuting the interpleader suit, the amount due to Yamo had been completely impressed with perfected federal tax liens. Any amount for costs and attorneys’ fees could only become choate after the inter-pleader action had been heard and after the court specified an allowable amount. Pioneer, 374 U.S. at 91, 83 S.Ct. at 1656. Thus, Campagna’s “offset” theory fails because there never was any choate amount to be offset before the federal tax liens had attached and had been recorded.
Campagna argues that Pioneer is inapposite because it does not deal with a situation where the claim for attorneys’ fees is a “direct offset” against the chose in action to which the government has succeeded. But Campagna’s argument begs the question. None of the attorneys’ fees cases involves a “direct offset” because all courts have determined that no “direct offset” is allowed. Indeed, Pioneer emphasizes that, until the court award, there is not even a choate claim, let alone a “direct offset.”
Campagna suggests that the fact that Yamo misrepresented its tax status implies a right to an offset for attorneys’ fees. Its argument is that since Yamo misrepresented itself as having no tax liability, and since the interpleader was necessary because Yamo did have a tax liability, then Yamo should be liable for costs and attorneys’ fees relating to the interpleader. We do not decide that question. But even if an offset were allowed in a case between Campagna and Yamo, it could not be allowed in the present case. Pioneer clearly teaches that costs and attorneys’ fees cannot be offset against a tax lien while they remain inchoate, and that costs and attorneys’ fees necessarily remain inchoate until the actual award by the court.
Indeed, the circumstances in Pioneer were even more favorable to the interpleading plaintiff than they are here. There, the contract giving rise to the interpleaded fund specifically stated that attorneys’ fees and costs would be granted to an inter-pleading plaintiff. The Pioneer court found that such language made no difference; the claim remained inchoate. In the Campagna-Yamo contract, there is not even such specific language relating to attorneys’ fees. The relevant language is merely Yamo’s certification that it had no tax liabilities. That certification cannot change the Pioneer result.
Campagna relies on United States v. Winnett, 165 F.2d 149 (9th Cir. 1947), where the court found that the rights of the government do not extend beyond those of the taxpayer whose right to property is levied upon. But Campagna’s reliance is misplaced. Winnett did not deal with attorneys’ fees but involved a written notice of limitation of interest established prior to the attachment or recording of federal tax liens. Winnett had borrowed money from Summers and later endorsed a note from Summers to a bank. The written contract between the parties stated that if Summers defaulted and Winnett was called on to make payment, the amounts so paid could be offset against the amounts due on Win-nett’s note to Summers. Summers did default and Winnett paid the bank accordingly. Shortly before the default, the government filed a tax lien against Summers and subsequently levied on Winnett for the entire debt. The court found that the government was only entitled to the amount of Winnett’s debt to Summers remaining after the offset because the limitation of interest and right of offset had been reduced to writing before any tax liens had attached. In effect, the court found that the claim had been choate. But attorneys’ fees claims, of course, are not choate until established and awarded by a court. Thus, the Winnett decision offers no reason for departing from the Pioneer result. Similarly, the cases cited by Campagna as following Winnett do not deal with attorneys’ fees and are equally unavailing.
IV
Campagna argues persuasively that the result we reach is inequitable. Although not legally required to bring an interpleader action, it was forced to do so in order to avoid liability exceeding the amount of the debt owed to Yamo. Now, it is unable to recover costs and attorneys’ fees resulting from the initiation of that action. Perhaps § 6323 should contain an exception for plaintiffs in Campagna’s situation. But it is for Congress, not this court, to write that exception.
Finally, Campagna argues that the government’s position in this case is unconscionable. First, the government allowed Yamo to incur serious delinquencies but made no serious effort to collect the taxes due. Then, Campagna providently provided the government with a convenient forum for the collection of the tax liens, yet the government responded with numerous technical and procedural objections. But Campagna cites no law, and we know of none, requiring the government to move rapidly on all tax delinquencies. As to the government’s technical and procedural objections, we cannot compel good sportsmanship.
REVERSED.
ORDER
On consideration of the petition for rehearing filed in the above-entitled cause by plaintiff-appellee, all of the judges on the original panel having voted to deny the same,
IT IS HEREBY ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED.
The Court considered the effect of the 1966 amendment to § 6323 in the course of its consideration of the case. This amendment was a general recodification of § 6323, creating new statutory exceptions to the validity of federal tax liens. Campagna cites no legislative history, and in our research we found none, suggesting this amendment was intended to include situations such as Campagna’s. Campagna’s situation is not covered by any of the statutory exceptions in § 6323. The federal tax lien, therefore, is valid. Section 6323(e) only allows attorneys’ fees with regard to situations where a federal tax lien is not valid. Thus, § 6323(e) does not support Campagna.
This order shall be published immediately following the opinion in this case.
. All of the defendants named in the interpleader complaint, except the United States, failed to answer; default judgments were entered against them.
. The District Court ordered that the $34,000 worth of assets already purchased by Campagna be discharged from any and all tax liens against Yamo. These funds are not at issue in this appeal.
. See Hinkley & Donovan v. Paine, 424 F.Supp. 1013, 1021 (N.H.1977) (disinterested bank-stakeholder who had filed an interpleader not entitled to costs and attorneys’ fees when amount available was insufficient to satisfy pri- or federal tax liens); United States v. State National Bank of Connecticut, 421 F.2d 519 (2d Cir. 1970) (no claim for attorneys’ fees is enforceable when the available funds are insufficient to satisfy a judgment based on prior federal tax liens). Accord, MDC Leasing Corp. v. New York Property Ins. Underwriting Ass’n., 450 F.Supp. 179 (S.D.N.Y.1978), aff’d, 603 F.2d 213 (3d Cir. 1979); Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 375 F.Supp. 186, 193 (S.D.N.Y.1974), rev’d on other grounds, 512 F.2d 605 (2d Cir. 1975); Pennsylvania Insurance Co. v. Long Island Marine Supply Corp., 229 F.Supp. 186, 188 (S.D.N.Y.1964); United States v. Henry's Bay View Inn, Inc., 191 F.Supp. 632, 634 (S.D.N.Y.1960); United States v. Wilson, 333 F.2d 147, 149 (3d Cir. 1964); United States v. Administrator of Estate of McCall, 313 F.Supp. 1399, 1402-03 (M.D.Pa. 1969); Spinks v. Jones, 499 F.2d 339 (5th Cir. 1974) ; Short v. United States, 395 F.Supp. 1151, 1155 (E.D.Tex.1975); Texas Oil & Gas Corp. v. United States, 340 F.Supp. 409, 411 (W.D.Tex.1971), aff’d, 466 F.2d 1040 (5th Cir. 1972), cert. denied, 410 U.S. 1040, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973); Uhlhorn v. Owens, 211 F.Supp. 798, 802-03 (S.D.Tex.1962); Bank of America Nat. Trust & Sav. Ass’n. v. Mamabos, 509 F.2d 1217, 1219-20 (9th Cir. 1975); C.I.T. Corp. v. United States, 344 F.Supp. 1272, 1277 (N.D.Cal.1972); United States v. Chapman, 281 F.2d 862, 870-71 (10th Cir. 1960).
. In the proceedings below, Campagna argued that it was a “purchaser” within the meaning of § 6323 and therefore entitled to the priority accorded by that section to purchasers. The District Court’s order was based on this argument. On appeal, however, Campagna has abandoned this argument, both in the brief and at oral argument. Therefore, that argument is not considered in this opinion.
Campagna also claimed on appeal that some undelineated new argument was raised by the United States on appeal with regard to “post-purchase levies”. But Campagna’s argument is groundless. The United States has consistently claimed the entire fund on the theories relied on in this appeal.
. The Court stated:
[I]t is equally apparent that the amount of the lien for attorney’s fees was undetermined and indefinite when the federal tax liens in question were filed. The mortgage held by respondents secured a promissory note which obligated the mortgagor maker to pay a ‘reasonable attorney’s fee’ ‘in the event of default’ and ‘of the placing of this note in the hands of an attorney for collection.’ By the time the federal liens subordinated by the Arkansas courts were placed of public record, default had occurred, the mortgagee had elected to declare the note due and payable, an attorney had been engaged and a suit to foreclose the mortgage had been filed. But the ‘reasonable attorney’s fee’-reasonable in relation to the service to be performed by the attorney-had not been reduced to a liquidated amount. The final amount was to be established by court decree that the Chancery Court set the fee considerably below the sum requested. Moreover, there is no showing in this record that the mortgagee had become obligated to pay and had paid any sum of money for services performed prior to the filing of the federal tax lien.
374 U.S. 84, at 90-91, 83 S.Ct., at 1656 (footnote omitted).
. The court stated:
These writings served as a notice of litigation of Summers’ interest in the note to all who might subsequently take the note, either as purchaser for value or for a pre-existing debt. One choosing to reach this chose-inaction belonging to Summers by attachment or garnishment could acquire no greater right against Winnett than that possessed by Summers. This would hold true even though the sovereign initiated the proceeding.
165 F.2d 149, at 151 (footnote omitted).
. Campagna cites two other cases in support of its argument that the tax lien attached to Yamo’s claim against Campagna was subject to a set-off for costs and attorneys’ fees. Neither case, however, dealt with costs and attorneys’ fees, and both cases involved choate claims prior to tax liens. In Stuart v. Willis, 244 F.2d 925 (9th Cir. 1957), the court held that the government’s levy upon the property of joint venturers, to liquidate the tax liability of one venturer alone, was void. In Karno-Smith Co. v. Maloney, 112 F.2d 690 (3d Cir. 1940), the court held that an insolvent subcontractor had no enforceable right to monies held by a general contractor, but subject to a valid supplier’s claim. Consequently, tax liens against the subcontractor could not reach the same monies. Neither case directly supports Campagna’s argument and neither is inconsistent with the Pioneer opinion.
. Campagna complains that the government first sought to dismiss this action in District Court for lack of jurisdiction but then made it clear that, once the plaintiff refiled in state court, it would remove the case back into federal court. We confess we cannot understand this strategy. But we make no opinion as to the propriety of these actions and find they have no relevance to the issue on appeal.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_district
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
John C. SINGLETON, Petitioner-Appellee, v. Lewis B. STEVENS, Warden, Federal Correctional Institution, Milan, Michigan, United States Board of Parole et al., Respondents-Appellants.
No. 14792.
United States Court of Appeals Sixth Circuit.
Aug. 22, 1962.
Alan G. Marer, Washington, D. C., Burke Marshall, Asst. Atty. Gen., Washington, D. C., Lawrence Gubow, U. S. Atty., Detroit, Mich., Harold H. Greene, Isabel L. Blair, Attorneys, Department of Justice, Washington, D. C., for appellants.
Vincent J. Brennan, Detroit, Mich., on brief for appellee.
Before MeALLISTER and O’SULLIVAN, Circuit Judges, and BOYD, District Judge.
PER CURIAM.
Respondents, the warden of the Federal Correctional Institution at Milan, Michigan, and others, appeal from the discharge of appellee, Singleton, from his confinement in such prison as a federal parole violator. His discharge was ordered in a habeas corpus proceeding brought in the United States District Court for the Eastern District of Michigan. The District Court’s order was based upon the fact that Singleton was not represented by counsel at a hearing at which his parole was revoked.
On April 24, 1951, in the U. S. District Court at Detroit, Michigan, Singleton was convicted and sentenced to an eight year term for a narcotics offense. On. June 29, 1955, he was released on parole from the Federal Correctional Institution at Milan, Michigan. On June 29, 1957, he was convicted and sentenced to a prison term on a state narcotics charge at Wethersfield, Connecticut. Upon his parole from the Connecticut prison, he was taken into federal custody as a federal parole violator and returned to the federal prison at Milan, Michigan, on February 11, 1960. On April 28, 1960, a parole revocation hearing was had before a member of the United States Parole Board and his federal parole was revoked. Notice of such action was given to Singleton in June, 1960. Singleton was not represented by counsel at the revocation hearing. He was not advised that he could have such counsel, nor did he request counsel.
In July, 1960, Singleton was offered a second parole revocation hearing, with an attorney present in his behalf if he so desired. He declined the offer and the habeas corpus proceedings involved here followed. Relying principally on the decisions of the Court of Appeals for the District of Columbia in Hurley v. Reed, 110 U.S.App.D.C. 32, 288 F.2d 844 (1961); Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959); and Moore v. Reid, 100 U.S.App.D.C. 373, 246 F.2d 654 (1957) the District Judge held that an opportunity to have counsel present at his original revocation hearing should have been given to Singleton. Because such had not been done, he discharged Singleton. He was of the opinion that the offered second hearing with counsel present would not correct what he considered a procedural error in the original revocation hearing. We are of the opinion that the District Judge was in error. Singleton admits his convic-' tion of a narcotics violation while he was on federal parole. There is no intimation that assistance of counsel at his revocation hearing would have helped him in any way.
The Courts are in disagreement as to whether the presence of counsel, or the opportunity therefor, is an essential ingredient of the “opportunity to appear” at a parole revocation hearing as provided in § 4207 of Title 18 U.S.C.A. The Court of Appeals of the District of Columbia holds that it is. Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946); Hurley v. Reed, supra; Robbins v. Reed, supra; Moore v. Reid, supra; Barnes v. Reed, 301 F.2d 516 (C.A.D.C., 1962). Under facts not in point with the case at bar, the District of Columbia Circuit has held that an offer of a second hearing will not remedy the failure to permit, or offer, counsel at the original hearing. Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961); Barnes v. Reed, supra. Other decisions hold that the presence of counsel for the prisoner at a revocation hearing is not essential to its validity. Hiatt v. Compagna, 178 F.2d 42 (C.A. 5, 1949), affirmed by equally divided court 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639, rehearing denied 340 U.S. 907, 71 S.Ct. 277, 95 L.Ed. 656 (1950); Washington v. Hagan, D.C., 183 F.Supp. 414, affirmed 287 F.2d 332 (C.A. 3, 1960) cert. denied 366 U.S. 970, 81 S.Ct. 1934, 6 L.Ed.2d 1259; Lopez v. Madigan, 174 F.Supp. 919 (N.D.Cal. 1959) . District Court decisions have held both ways and there is a division within the Eastern District of Michigan, from which this case arises. Supporting a rule that the opportunity to have counsel at a revocation hearing is an essential are Cannon v. Stucker (E.D.Mich. No. 19,-822, June 16, 1960) and the instant case. Contra are Poole v. Stevens, 190 F.Supp. 938 (E.D.Mich.1960); Hoover v. Stevens, (E.D.Mich. No. 20,349, September 15, 1960); Clark v. Stevens (E.D.Mich., 1960), affirmed without discussion of the point here involved, 291 F.2d 388 (C.A. 6, 1961).
A large number of unreported District Court decisions (three in the Eastern District of Michigan), have held that the offer of a new hearing with counsel present renders the issue moot. We are advised of, but have not seen, like holdings by the District Court for the District of Columbia. We are satisfied that the appellee here has had available to him all that the law contemplates that he should have.
Singleton’s petition for writ of habeas corpus further charges that he should be released because there was an unreasonable delay between the time of his arrest and return to the Milan prison in February, 1960, and the time that he was notified of his parole revocation. His parole hearing was held in April, 1960, which was on the occasion of the first visit of a representative of the Parole Board to Milan after Singleton’s return there in February. Singleton makes no claim that he was prejudiced by the delay, and at no time sought speedier action by the parole authorities. The District Judge did not consider the point. It is without merit. Buono v. Kenton, 287 F.2d 534 (C.A. 2, 1961), cert. denied, 368 U.S. 846, 82 S.Ct. 75, 7 L.Ed.2d 44.
The judgment of the District Court is reversed, with instructions to enter judgment dismissing Singleton’s petition for a writ of habeas corpus and ordering his return to federal custody.
. Because of various court decisions, the United States Parole Board now provides by rule that:
“All federal prisoners who have been returned to custody as parole or mandatory release violators under a Board war-
rant shall be advised that they may be represented by counsel at the revocation hearing provided that they arrange for such counsel in accordance with Board procedure.
“All prisoners in custody as violators previously given revocation ‘hearings’ without being afforded the opportunity
for representation by counsel shall be given an opportunity for a hearing with counsel.”
. Burdette v. Stevens, Civil No. 20,396 (E.D.Mich., November 17, 1960); Matter of Charles F. Leathead, No. 20,837 (E.D.Mich., 1960); Matter of Ollis II. Goodson. No. 20.249 (E.D.Mich., 1960).
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_initiate
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
DYHRE v. HUDSPETH, Warden.
No. 1864.
Circuit Court of Appeals, Tenth Circuit.
Aug. 17, 1939.
Rehearing Denied Sept. 25, 1939.
Hayes R. Hindry, of Denver, Colo., for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer. Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
LEWIS, Circuit Judge.
This is an appeal from an order denying petition for writ of habeas corpus.
On January 25, 1938, an indictment containing eight counts,-each charging use of the mails to defraud (18 U.S.C.A. § 338), was returned against petitioner in the United States District Court for the Western District of Louisiana. On the same day petitioner pleaded guilty, and was sentenced to a term of three years in the United States Penitentiary at Leavenworth, Kansas, on the first count and was placed on probation for a period of five years on the remaining counts. Petitioner was delivered to the Warden of said penitentiary February 3, 1938.
A copy of the indictment was attached to the petition. It first alleged that before, the dates of committing the offenses set out in eight counts that follow Alfred Dyhre, alias Alfred Stanley, alias G. L. Lewis, alias I. J. Knowles, devised a scheme to defraud named business houses of Lake Providence, Louisiana, by obtaining merchandise - by means of false and fraudulent representations ; that he represented that he had bank accounts in named banks and drew checks for various amounts payable to the persons to be defrauded, although he had no money on deposit therein and had no intention of the checks being paid. Count One continues :
“That the said defendant on or about the 8th day of October, Nineteen Hundred and 37, at Lake Providence, in the Parish of East Carroll, State of Louisiana, aforesaid, in the division and district aforesaid, so having devised the said scheme and artifice to defraud and in and for executing the scheme and artifice and in and for attempting so to do, and in and for defrauding by and through the said scheme and artifice, the said Pan-Am Service Station, which was one of the persons so intended to be defrauded, as aforesaid, by" and through the said scheme and as aforesaid, willfully, unlawfully, knowingly, feloniously, and fraudulently did cause to be placed in the post office of the said United States of America, a't Lake Providence, in the Parish of East Carroll, State of Louisiana, to be sent and delivered by the said post office establishment, to the said Bent County Bank of Las Animas, Colorado,- aforesaid, •a certain check contained in an envelope and duly stamped with uiicanceled postage, and addressed to The Whitney National Bank, New Orleans, La., which said envelope contained a check drawn on the Bent County Bank of Las Animas, Colorado, in the sum of $12.65 dated October 8, 1937, and signed G. L. Lewis; that at the time of the mailing of said check the said defendant knew that the name G. L. Lewis, signed to said check was purely fictitious and by him falsely assumed and used, and the said check was caused to be sent to the said Bent County Bank of Las Animas, Colorado, by him, the said defendant, for the sole and only purpose of defrauding said corporation of the amount of said check, and at the time of writing and mailing said check he, the said defendant, well knew he had no funds on deposit in said bank to the credit of or in the name of G. L. Lewis, and did not intend that said check be paid contrary to the form of the statute” etc.
The remaining seven counts involve checks in smaller amounts, and are the same in substance as the first under which petitioner was sentenced, except some of the checks therein described are made payable to other persons, some of them were signed with the name Dyhre or Knowles, and some of them were drawn on the First National Bank, Las Animas, Colorado, or the Oak Grove Bank, Oak Grove, Louisiana. The mailing charged in each was the same as that charged in the first count. All the checks were alleged to have been mailed on the day they were dated, except the check in the third count was alleged to have been mailed on October 10, 1937, and dated October 20, 1937.
Petitioner alleged under oath in his application for the writ:
“That the facts are that he was guilty of cashing or negotiating eight separate checks for amounts ranging from $3.30 to $12.65, all of which checks were by him passed and cashed by merchants in or about Lake Providence in the Parish of East Carroll, in the State of Louisiana, and all of which checks were subsequently redeemed or made good by this petitioner, although this petitioner did not at the time said checks were passed or cashed as aforesaid, have in the banks upon which said checks were drawn, funds sufficient to pay same. That your petitioner did not, in any manner, use the United States mail to pass or cash said checks or in any other manner in connection with any of the transactions involving the same, nor did your petitioner authorize or direct any person, bank or other corporation to, in any manner, use the mails in passing or cashing said checks.”
There was no denial at the hearing of the facts so stated by petitioner-appellant.
The Warden’s response pleaded the judgment and sentence of petitioner; and alleged that petitioner signed a waiver December 29, 1937, asking that the charges against him in the Monroe division of the United States District Court for the Western District of Louisiana be transferred to any other division of said court that petitioner might enter a plea of guilty; that petitioner voluntarily, intelligently, and freely entered his plea of guilty; that the substance of the indictment was explained to him; and that petitioner at no time requested the appointment of counsel.
Petitioner Dyhre’s letter of December 29, 1937, requesting that the charges pending against him in the Monroe division of said court be transferred to any other division of the court in order that he might plead guilty thereto, was attached to the response.
J. Fair Hardin, Assistant United States Attorney for the Western District of Louisiana, stated in an affidavit accompanying the response that he handled petitioner’s case; that upon arraignment the substance of the indictment was explained to petitioner; that Judge Ben C. Dawkins asked petitioner if he understood the charges and he said he did; that petitioner stated he wished to plead guilty; that he made no request of the court at any time for the appointment of counsel; that after entry of the plea of guilty the post office inspector made a statement of the facts in the case; that the affiant submitted petitioner’s criminal record to the court and advised the Judge that petitioner was suffering from tuberculosis and had been turned over to the federal authorities by the state authorities on that account, inasmuch as he was an ex-service man and was drawing a compensation of $50 a month from the Government; that Judge Dawkins asked the prisoner if he had any statement to make; that petitioner mentioned his physical condition, and the Judge stated the Government had proper facilities at the institution to which he was going to send him to take care of tubercular cases, and considering his past record it would be necessary to impose a sentence of three years; that petitioner communicated no request to affiant to withdraw his plea of guilty; that petitioner was first arrested by the state authorities; that upon learning petitioner had tuberculosis and was an ex-service man drawing compensation from the Government the service officer of the local American Legion Post obtained his hospital and other records; that the state authorities concluded that inasmuch as the state penitentiary had no facilities for handling a tubercular it would be to the prisoner’s interest to turn him over to the federal authorities for prosecution under the mail fraud statute; and that the case had more than the usual attention, chiefly in the interest of the prisoner.
The fraud charged in each of these counts standing alone is not within the jurisdiction of the federal court, but it may be brought within- that jurisdiction by charging that defendant used the United States mail “for the purpose of executing such scheme or artifice or attempting so to do”. That was charged here, but the charge clearly shows that the United States mail could not have been used for the purpose of executing or in attempting to execute the fraudulent scheme, because the mailing did not take place until after the defendant had induced the parties named to accept his fraudulent check for merchandise. He had thus accomplished all he set out to do in falsely representing that he had money on deposit in the banks. McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669. In Stewart v. United States, 8 Cir., 119 F. 89, 95, Circuit Judge Thayer said this on the point:
“Another observation to be made concerning the indictment is this: That while the fraudulent scheme, as described, was one whereby the mails were to be employed to induce persons to come to Webb City, to be afterwards defrauded, yet the letter which was deposited in the mails by Gillett, on which the third count is founded, does not seem to have been written to accomplish any such purpose, and for that reason it can hardly be said to have been deposited in the mail in execution of such a scheme as the indictment describes. It was written, as it seems, long after Davis had been induced to go to Webb City and after he had wagered his money and sustained all the loss that he could possibly sustain by reason of the alleged fraudulent scheme.”
Moreover, it can not be reasonably contended that there was one fraudulent scheme that extended to all the persons who were induced to cash defendant’s checks. Each person who did so was separately defrauded by representations made to him alone, ¿tie pleader so charged them, and the Grand Jury found that each count was a separate offense. The defrauding of one had no connection with the defrauding of another.
The mailing of a check in each count seems self-contradictory. Each count charges that the defendant caused to be placed in the post office of the United States at Lake Providence, Louisiana, to be sent and delivered by said post office establishment to the said Bent County Bank, Las Animas, Colorado, (or one of the other two banks named), a certain check contained in an envelope duly stamped with uncanceled postage and addressed to the Whitney National Bank, New Orleans, Louisiana, which said envelope contained a check drawn on the Bent County Bank, Las Animas, Colorado.
We think a motion in arrest of judgment after verdict or plea of guilty would have been well taken, because of the failure of the record to show jurisdiction.
The order denying the petition for the writ is reversed and the cause remanded to the District Court with directions to discharge the petitioner Dyhre.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_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.
FLORIDA LIME AND AVOCADO GROWERS, INC., et al. v. JACOBSEN, DIRECTOR OF THE DEPARTMENT OF AGRICULTURE OF CALIFORNIA, et al.
No. 49.
Argued December 9-10, 1959.
Decided March 7, 1960.
Isaac E. Ferguson argued the cause and filed a brief for appellants.
John Fourt, Deputy Attorney General of California, argued the cause for appellees. With him on the brief was Stanley Mosk, Attorney General of California.
Mr. Justice Whittaker
delivered the opinion of the Court.
Appellants, engaged in the business of growing, packing, and marketing in commerce, Florida avocados, brought this action in the District Court of the United States for the Northern District of California to enjoin respondents, state officers of California, from enforcing § 792 of the California Agricultural Code.
Section 792 prohibits, among other things, the importation into or sale in California of avocados containing “less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.” The complaint alleged, inter alia, that the varieties of avocados grown in Florida do not normally, or at least not uniformly, contain at maturity as much as 8% of oil by weight; that in each year since 1954 appellants have shipped in interstate commerce, in full compliance with the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued under that Act by the Secretary of Agriculture on June 11, 1954, Florida avocados into the State of California and have attempted to sell them there; that appellees, or their agents, have consistently barred the sale of appellants’ avocados in California for failure uniformly to contain not less than 8% of oil by weight, resulting in denial to appellants of access to the California market, and forcing reshipment of the avocados to and their sale in other States, to the injury of appellants, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution, as well as of the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder.
Inasmuch as the complaint alleged federal unconstitutionality of the California statute, appellants requested the convening of, and there was convened, a three-judge District Court pursuant to 28 U. S. C. § 2281 to hear the case. After hearing, the court concluded that, because appellants had not contested the validity of § 792 nor sought abatement of appellees’ condemnation of the avocados in the California state courts, the case presented “no more than a mere prospect of interference posed by the bare existence of the law in question,” and that it had “no authority to take jurisdiction [and was] left with no course other than to dismiss the action,” which it did. 169 F. Supp. 774, 776. Appellants brought the case here on direct appeal under 28 U. S. C. § 1253, and we postponed the question of our jurisdiction to the hearing on the merits. 360 U. S. 915.
The first and principal question presented is whether this action is one required by § 2281 to be heard by a District Court of three judges and, hence, whether we have jurisdiction of this direct appeal under § 1253.
Section 2281 provides that an injunction restraining the enforcement of a state statute may not be granted upon the ground of unconstitutionality of such statute “unless the application therefor is heard and determined by a district court of three judges . . . ,” and §• 1253 provides that any order, granting or denying an injunction in any civil action required by any Act of Congress to be heard and determined by a District Court of three judges, may be appealed directly to this Court.
Appellees concede that if the complaint had attacked § 792 solely on the ground of conflict with the United States Constitution, the action would have been one required by § 2281 to be heard and determined by a District Court of three judges. But appellees contend that because the complaint also attacks § 792 on the ground of conflict with the Federal Agricultural Marketing Agreement Act of 1937 and the Secretary’s Florida Avocado Order No. 69, it is possible that the action could be determined on the statutory rather than the constitutional ground, and, therefore, the action was not required to be heard by a District Court of three judges under § 2281 and, hence, a direct appeal does not lie to this Court under § 1253.
Section 2281 seems rather plainly to indicate a congressional intention to require an application for an injunction to be heard and determined by a court of three judges in any case in which the injunction may be granted on grounds of federal unconstitutionality. The reason for this is quite clear. The impetus behind the first three-judge court statute was the decision in Ex parte Young, 209 U. S. 123 (1908), in which it was held that a federal court could enjoin a state officer from enforcing a state statute alleged to be unconstitutional, despite the prohibition of the Eleventh Amendment concerning suits against a State. Debate was immediately launched in the Senate with regard to cushioning the impact of the Young case, the principal concern being with the power thus activated in one federal judge to enjoin the operation or enforcement of state legislation on grounds of federal unconstitutionality.
The result of the debates on this subject was passage of a three-judge-court statute in 1910, 36 Stat. 557, which was codified as § 266 of the Judicial Code, 36 Stat. 1162.® This statute prohibited the granting of an interlocutory injunction against a state statute upon grounds of federal unconstitutionality unless the application for injunction was heard and determined by a court of three judges.
The statute also contained its own provision for direct appeal to this Court from an order granting or denying an interlocutory injunction. The objective of § 266 was clearly articulated by Mr. Chief Justice Taft in Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Comm’n, 260 U. S. 212:
“The legislation was enacted for the manifest purpose of taking away the power of a single United States Judge, whether District Judge, Circuit Judge or Circuit Justice holding a District Court of the United States, to issue an interlocutory injunction against the execution of a state statute by a state officer or of an order of an administrative board of the State pursuant to a state statute, on the ground of the federal unconstitutionality of the statute. Pending the application for an interlocutory injunction, a single judge may grant a restraining order to be in force until the hearing of the application, but thereafter, so far as enjoining the state officers, his power is exhausted. The wording of the section leaves no doubt that Congress was by provisions ex industria seeking to make interference by interlocutory injunction from a federal court with the enforcement of state legislation, regularly enacted and in course of execution, a matter of the adequate hearing and the full deliberation which the presence of three judges, one of whom should be a Circuit Justice or Judge, was likely to secure. It was to prevent the improvident granting of such injunctions by a single judge, and the possible unnecessary conflict between federal and state authority always to be deprecated.” 260 U. S., at 216.
In 1925, § 266 was amended to require a three-judge court for issuance of a permanent as well as an interlocutory injunction, and § 238 of the Judicial Code (a broad statute governing direct appeals to this Court from District Courts) was amended, so far as here pertinent, to incorporate the provision for direct appeals to this Court from the orders of three-judge courts granting or denying an injunction in a § 266 case. 43 Stat. 938. Such is the present scheme of §§ 2281 and 1253.
With this background, it seems entirely clear that the central concern of Congress in 1910 was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality. And the 1925 amendment requiring a court of three judges for issuance of a permanent as well as an interlocutory injunction “was designed to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction.” Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 14. Section 2281, read in the light of this background, seems clearly to require that when, in any action to enjoin enforcement of a state statute, the injunctive decree may issue on the ground of federal unconstitutionality of the state statute, the convening of a three-judge court is necessary; and the joining in the complaint of a noncon-stitutional attack along with the constitutional one does not dispense with the necessity to convene such a court. To hold to the contrary would be to permit one federal district judge to enjoin enforcement of a state statute on the ground of federal unconstitutionality whenever a non-constitutional ground of attack was also alleged, and this might well defeat the purpose of § 2281.
Cases in this Court since Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298 (1913), have consistently adhered to the view that, in an injunction action challenging a state statute on substantial federal constitutional grounds, a three-judge court is required to be convened and has — just as we have on a direct appeal from its action — jurisdiction over all claims raised against the statute. These cases represent an unmistakable recognition of the congressional policy to provide for a three-judge court whenever a state statute is sought to be enjoined on grounds of federal unconstitutionality, and this consideration must be controlling.
Appellees place some reliance on Ex parte Buder, 271 U. S. 461, and Lemke v. Farmers Grain Co., 258 U. S. 50 {Lemke I), in support of their position. Buder held merely that a claim of conflict between a state statute and a federal statute was not a constitutional claim requiring the convening of a three-judge court under § 266, and thus there could be no direct appeal here. Buder did not, however, require that a constitutional claim be the sole claim before the three-judge court. Lemke I held that it was permissible to appeal to the Court of Appeals rather than directly to this Court from the final order of a single district judge in a case in which a state statute was attacked on the grounds that it was both unconstitutional and in conflict with a federal statute. The case was decided under § 238, which, until 1925, was a broad statute calling for a direct appeal to this Court from the action of a District Court “in any case that involves the construction or application of the Constitution of the United States . . . and in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.” The breadth of § 238 had led the Court on several occasions to construe this provision to mean that a direct appeal to this Court was required only when the sole ground of District Court jurisdiction was the federal constitutional claim involved, Union & Planters’ Bank v. Memphis, 189 U. S. 71, 73; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 318, but if jurisdiction was based both on a constitutional ground and some other federal ground the appeal might properly be taken either to this Court or to the Court of Appeals. Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 407-408; Macfadden v. United States, 213 U. S. 288, 293. Lemke I, decided in 1922, merely followed this line of decisions, and was not in any way concerned with a direct appeal to this Court under § 266 from the order of a three-judge court — the question now before us.
The distinction between the scope of our direct appellate jurisdiction under § 238 and § 266 prior to 1925 was effectively illustrated by the differing course of events in Lemke I and Lemke v. Homer Farmers Elevator Co., 258 U. S. 65 (Lemke II). Both cases involved an attack on a state statute on grounds of federal unconstitutionality and conflict with a federal statute. In both, interlocutory injunctions were sought before three-judge courts, and the injunctions were granted. Lemke I, however, also sought a permanent injunction before a single district judge, and, from his order denying the injunction, the case was appealed to the Court of Appeals before coming here. Lemke II, on the other hand, was directly appealed to this Court under § 266 from the interlocutory order of the three-judge court. As indicated, this Court held that the final order of the single judge in Lemke 1 was properly appealed to the Court of Appeals under § 238 because of the additional nonconstitutional basis for District Court jurisdiction. But in Lemke II this Court took jurisdiction over all issues presented in the direct appeal under § 266 from the interlocutory order of the three-judge court. See also Shafer v. Farmers Grain Co., 268 U. S. 189, a case virtually identical with Lemke II, in which this Court also took jurisdiction over all questions in a § 266 direct appeal from an interlocutory injunction granted by a three-judge court.
The problem was greatly simplified in 1925 when § 266 was amended to require three-judge courts for the granting of both interlocutory and permanent injunctions on grounds of federal unconstitutionality, and § 238, while substantially amended to reduce the scope of our general appellate jurisdiction, so far as here pertinent, merely incorporated the provision for direct appeals to this Court from injunctions granted or denied under § 266. We do not find in these amendments any intention to curtail either the jurisdiction of three-judge courts or our jurisdiction on direct appeal from their orders. Indeed, the cases since 1925 have continued to maintain the view that if the constitutional claim against the state statute, is substantial, a three-judge court is required to be convened and has jurisdiction, as do we on direct appeal, over all grounds of attack against the statute. E. g., Sterling v. Constantin, 287 U. S. 378, 393-394; Railroad Comm’n of California v. Pacific Gas & Electric Co., 302 U. S. 388, 391; Public Service Comm’n v. Brashear Freight Lines, 312 U. S. 621, 625, n. 5.
To hold that only one judge may hear and decide an action to enjoin the enforcement of a state statute on both constitutional and nonconstitutional grounds would be to ignore the explicit language and manifest purpose of § 2281, which is to provide for a three-judge court whenever an injunction sought against a state statute may be granted on federal constitutional grounds. Where a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, then even though nonconstitutional grounds of attack are also alleged, we think the case is one . that is “required by . . . Act of Congress to be heard and determined by a district court of three judges.” 28 U. S. C. § 1253. (Emphasis added.) We, therefore, hold that we have jurisdiction of this direct appeal.
We turn now to the merits. The Court is of the view that the District Court was in error in holding that, because appellants had not contested the validity of § 792 nor sought abatement of appellees’ condemnation of their avocados, there was no “existing dispute as to present legal rights,” but only “a mere prospect of interference posed by the bare existence of the law in question [§792],” and in accordingly dismissing the action for want of jurisdiction. As earlier stated, the complaint alleges that, since the issuance of the Secretary’s Florida Avocado Order No. 69 in 1954, appellants have made more than a score of shipments in interstate commerce of Florida avocados to and for sale in California, and appellees, or their agents-, have in effect consistently condemned those avocados for failure to contain 8% or more of oil by weight, thus requiring appellants — to prevent destruction and complete loss of their shipments — to reship the avocados to and sell them in other States, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution as well as the Marketing Agreement Act of 1937. It is therefore evident that there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the merits. In these circumstances, the fact that appellants did not contest the validity of § 792 nor seek abatement of appellees’ condemnation of the avocados in the California state courts — which, because of the time period necessarily involved, would have resulted in the complete spoilage and loss of the product — does not constitute an impediment to their right to seek an injunction in the federal court against enforcement of § 792 on the ground that it violates both the Constitution of the United States and the Federal Agricultural Marketing Agreement Act of 1937.
The judgment is therefore reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Douglas joins in the part of the opinion that passes on the merits, the Court having held, contrary to his view, that the case is properly here on direct appeal from a three-judge court.
Deering’s Agricultural Code of the State of California, 1950; c. 2, Div. 5, of West’s Ann. California Agricultural Code.
50 Stat. 246, 7 U. S. C. § 601 et seq.
28 U. S. C. § 2281 provides:
“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be'granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”
28 U. S. C. § 1253 provides:
“Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”
In the Senate debates Senator Overman of North Carolina commented as follows:
“This measure proposes that whenever a petition is presented the circuit judge before whom it is presented shall, before granting the injunction, call in one circuit judge and one district judge or another circuit court judge, making three judges who shall pass upon the question of the injunction.
“We think, sir, that if this could be done it would allay much intense feeling in the States. As was said by Mr. Justice Harlan, in his dissenting opinion in the Minnesota case [Ex parte Young], we have come to a sad day when one subordinate Federal judge can enjoin the officer of a sovereign State from proceeding to enforce the laws of the State passed by the legislature of his own State, and thereby suspending for a time the laws of the State. . . . That being so, there being great feeling among the people of the States by reason of the fact that one Federal judge has tied the hands of a sovereign State and enjoined in this manner the great officer who is charged with the enforcement of the laws of the State, causing almost a revolution, as it did in my State, and in order to allay this feeling, if this substitute is adopted and three judges have to pass upon the question of the constitutionality of a State statute and three great judges say that the statute is unconstitutional, the officers of the State will be less inclined to resist the orders and decrees of our Federal courts. The people and the courts of the State are more inclined to abide by the decision of three judges than they would of one subordinate inferior Federal judge who simply upon petition or upon a hearing should tie the hands of a State officer from proceeding with the enforcement of the laws of his sovereign State. . . 42 Cong. Rec. 4847.
And Senator Bacon of Georgia remarked:
“The purpose of the bill is to throw additional safeguards around the exercise of the enormous powers claimed for the subordinate Federal courts. If these courts are to exercise the power of stopping the operation of the laws of a State and of punishing the officers of a State, then at least let it be done on notice and not hastily, and let there be the judgment of three judges to decide such questions, and not permit such dangerous power to one man.
“The necessity for this legislation is a very grave one. It is a most serious trouble which now exists — that by the action of one judge the machinery of State laws can be arrested. . . .” 42 Cong. Rec. 4853.
Section 266 of the Judicial Code originally provided in pertinent part:
“No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. . . . An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case.” 36 Stat. 1162.
See, e. g., Van Dyke v. Geary, 244 U. S. 39; Cavanaugh v. Looney, 248 U. S. 453; Lemke v. Homer Farmers Elevator Co., 258 U. S. 65 (Lemke II); Chicago, Great Western R. Co. v. Kendall, 266 U. S. 94; Shafer v. Farmers Grain Co., 268 U. S. 189; Herkness v. Irion, 278 U. S. 92; Sterling v. Constantin, 287 U. S. 378; Spielman Motor Sales Co. v. Dodge, 295 U. S. 89; Railroad Comm’n of California v. Pacific Gas & Electric Co., 302 U. S. 388; Public Service Comm’n v. Brashear Freight Lines, 312 U. S. 621; Parker v. Brown, 317 U. S. 341.
In the Garrett case, the following observations were made by Mr. Justice Hughes:
“Because of the Federal questions raised by the bill the Circuit [District] Court had jurisdiction and was authorized to determine all the questions in the case, local as well as Federal. Siler v. Louisville & Nashville R. R., 213 U. S. 175, 191. A similar rule must be deemed to govern the application for preliminary injunction under the statute which requires a hearing before three judges, and authorizes an appeal to this court. 36 Stat. 557. This statute applies to cases in which the preliminary injunction is sought in order to restrain the enforcement of a state enactment upon the ground of its ‘unconstitutionality.’ The reference, undoubtedly, is to an asserted conflict with the Federal Constitution, and the question of unconstitutionality, in this sense, must be a substantial one. But, where such a question is presented, the application is within the provision, and this being so, it cannot be supposed that it was the intention of Congress to compel the exclusion of other grounds and thus to require a separate motion for preliminary injunction, and a separate hearing and appeal, with respect to the local questions which are involved in the case and would properly be the subject of consideration in determining the propriety of granting an injunction pending suit. The local questions arising under the state constitution and statutes were therefore before the Circuit [District] Court and the appeal brings them here.” 231 U. S., at 303-304.
In Sterling v. Constantin, 287 U. S. 378, for example, certain state administrative orders were sought to be enjoined on the ground that they violated both the State and Federal Constitutions. The Governor of the State had declared martial law in an effort to enforce the orders, and his action was also challenged on the ground that any statute purporting to confer such authority on him was in violation of the State and Federal Constitutions. With regard to the jurisdiction of the three-judge court which had been convened for the purpose of considering an application for injunction, Mr. Chief Justice Hughes said:
“As the validity of provisions of the state constitution and statutes, if they could be deemed to authorize the action of the Governor, was challenged, the application for injunction was properly heard by three judges. Stratton v. St. Louis Southwestern Ry. Co., 282 U. S. 10. The jurisdiction of the District Court so constituted, and of this Court upon appeal, extends to every question involved, whether of state or federal law, and enables the court to rest its judgment on the decision of such of the questions as in its opinion effectively dispose of the case.” 287 U. S., at 393-394.
In Phillips v. United States, 312 U. S. 246, it was held that a suit by the United States to enjoin the action of a Governor in interfering with the construction of a state power project using federal funds was not within § 266 because the validity of a state statute or order had not been challenged. Sterling v. Constantin was distinguished on the ground that it involved an attempt to restrain the action of a Governor as part of a main objective to enjoin execution of certain administrative orders as violative of the State and Federal Constitutions. As such, Sterling was said to have been “indubitably within § 266.” 312 U. S., at 253.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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sc_authoritydecision
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
Pedro Pablo GUERRERO-LASPRILLA, Petitioner
v.
William P. BARR, Attorney General;
Ruben Ovalles, Petitioner
v.
William P. Barr, Attorney General
Nos. 18-776
18-1015
Supreme Court of the United States.
Argued December 9, 2019
Decided March 23, 2020
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Frederick Liu, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, W. Manning Evans, Attorneys, Department of Justice, Washington, D.C., for respondent
Mark Andrew Prada, Mario R. Urizar, Prada Urizar, PLLC, Miami, FL, Eugene R. Fidell, Yale Law School, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Ethan H. Townsend, Andrew A. Lyons-Berg, McDermott Will & Emery LLP, Washington, DC, Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, Brian Wolfman, Washington, DC, for petitioners.
Paul W. Hughes, Washington, DC, for the petitioners
Frederick Liu for the respondent.
JUSTICE BREYER delivered the opinion of the Court.
Section 242(a) of the Immigration and Nationality Act, codified as 8 U. S. C. § 1252(a), provides for judicial review of a final Government order directing the removal of an alien from this country. See 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq . A subdivision of that section limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes, including aggravated felonies and controlled substance offenses. § 1252(a)(2)(C). Another subdivision, § 1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only "constitutional claims or questions of law." The question that these two consolidated cases present is whether the phrase "questions of law" in the Provision includes the application of a legal standard to undisputed or established facts. We believe that it does.
I
The two petitioners before us, Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles, are aliens who lived in the United States. Each committed a drug crime and consequently became removable. App. 33; Record in No. 18-1015, p. 66. In 1998, an Immigration Judge ordered Guerrero-Lasprilla removed. Record in No. 18-776, p. 137. In 2004, the Board of Immigration Appeals ordered Ovalles removed, reversing a decision by an Immigration Judge. App. to Pet. for Cert. in No. 18-1015, pp. 32a-35a. Both removal orders became administratively final, and both petitioners left the country.
Several months after their removal orders became final, each petitioner's window for filing a timely motion to reopen his removal proceedings closed. That is because the Immigration and Nationality Act permits a person one motion to reopen, "a form of procedural relief that asks the Board to change its decision in light of newly discovered evidence or a change in circumstances." Dada v. Mukasey , 554 U.S. 1, 12, 14, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (internal quotation marks omitted). But the motion must usually be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U. S. C. § 1229a(c)(7)(C)(i).
Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board to reopen their removal proceedings. Recognizing that the 90-day time limit had long since passed, both petitioners argued that the time limit should be equitably tolled. Both petitioners, who had become eligible for discretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo-Resendez v. Lynch , 831 F.3d 337 (CA5 2016). In that case, the Fifth Circuit had held that the 90-day time limit could be "equitably tolled." Id ., at 344. Guerrero-Lasprilla filed his motion to reopen a month after Lugo-Resendez was decided. App. 5. Ovalles filed his motion to reopen eight months after the decision. Id ., at 35. The Board denied both petitioners' requests for equitable tolling, concluding, inter alia , that they had failed to demonstrate the requisite due diligence. App. to Pet. for Cert. in No. 18-1015, at 6a; App. to Pet. for Cert. in No. 18-776, p. 12a.
Guerrero-Lasprilla and Ovalles each asked the Fifth Circuit to review the Board's decision. See 8 U. S. C. § 1252(a)(1) ; 28 U. S. C. § 2342 ; Reyes Mata v. Lynch , 576 U. S. 143, 147, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015) ("[C]ircuit courts have jurisdiction when an alien appeals from the Board's denial of a motion to reopen a removal proceeding"). The Fifth Circuit denied their requests for review, concluding in both cases that "whether an alien acted diligently in attempting to reopen removal proceedings for purposes of equitable tolling is a factual question." Guerrero-Lasprilla v. Sessions , 737 Fed.Appx. 230, 231 (2018) (per curiam ); Ovalles v. Sessions , 741 Fed.Appx. 259, 261 (2018) (per curiam ). And, given the Limited Review Provision, it "lack[ed] jurisdiction" to review those "factual" claims. 737 Fed.Appx. at 231 ; 741 Fed.Appx. at 261.
Both petitioners claim that the underlying facts were not in dispute, and they asked us to grant certiorari in order to determine whether their claims that the Board incorrectly applied the equitable tolling due diligence standard to the "undisputed" (or established) facts is a "question of law," which the Limited Review Provision authorizes courts of appeals to consider. We agreed to do so.
II
The Limited Review Provision provides that, in this kind of immigration case (involving aliens who are removable for having committed certain crimes), a court of appeals may consider only "constitutional claims or questions of law." 8 U. S. C. § 1252(a)(2)(D). The issue before us is, as we have said, whether the statutory phrase "questions of law" includes the application of a legal standard to undisputed or established facts. If so, the Fifth Circuit erred in holding that it "lack[ed] jurisdiction" to consider the petitioners' claims of due diligence for equitable tolling purposes. We conclude that the phrase "questions of law" does include this type of review, and the Court of Appeals was wrong to hold the contrary.
A
Consider the statute's language. Nothing in that language precludes the conclusion that Congress used the term "questions of law" to refer to the application of a legal standard to settled facts. Indeed, we have at times referred to the question whether a given set of facts meets a particular legal standard as presenting a legal inquiry. Do the facts alleged in a complaint, taken as true, state a claim for relief under the applicable legal standard? See Fed. Rule Civ. Proc. 12(b)(6) ; Neitzke v. Williams , 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (" Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Did a Government official's alleged conduct violate clearly established law? See Mitchell v. Forsyth , 472 U.S. 511, 528, n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ("[T]he appealable issue is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law"); cf. Nelson v. Montgomery Ward & Co. , 312 U.S. 373, 376, 61 S.Ct. 593, 85 L.Ed. 897 (1941) ("The effect of admitted facts is a question of law"). Even the dissent concedes that we have sometimes referred to mixed questions as raising a legal inquiry. See post, at 1074 - 1075 (opinion of THOMAS, J.). While that judicial usage alone does not tell us what Congress meant by the statutory term "questions of law," it does indicate that the term can reasonably encompass questions about whether settled facts satisfy a legal standard.
We have sometimes referred to such a question, which has both factual and legal elements, as a "mixed question of law and fact." See, e.g., U. S. Bank N. A. v. Village at Lakeridge, LLC , 583 U. S. ----, ----, 138 S.Ct. 960, 966, 200 L.Ed.2d 218 (2018) ("[W]hether the historical facts found satisfy the legal test chosen" is a "so-called 'mixed question' of law and fact" (citing Pullman-Standard v. Swint , 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) )). And we have often used the phrase "mixed questions" in determining the proper standard for appellate review of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts. The answer to the "proper standard" question may turn on practical considerations, such as whether the question primarily "require[s] courts to expound on the law, particularly by amplifying or elaborating on a broad legal standard" (often calling for review de novo ), or rather "immerse[s] courts in case-specific factual issues" (often calling for deferential review). Village at Lakeridge , 583 U. S., at ----, 138 S.Ct., at 967. But these cases present no such question involving the standard of review. And, in any event, nothing in those cases forecloses the conclusion that the application of law to settled facts can be encompassed within the statutory phrase "questions of law." Nor is there anything in the language of the statute that suggests that "questions of law" excludes the application of law to settled facts.
B
The Government, respondent here, argues to the contrary. Namely, the Government claims that Congress intended to exclude from judicial review all mixed questions. We do not agree. Rather, a longstanding presumption, the statutory context, and the statute's history all support the conclusion that the application of law to undisputed or established facts is a "questio[n] of law" within the meaning of § 1252(a)(2)(D).
1
Consider first "a familiar principle of statutory construction: the presumption favoring judicial review of administrative action." Kucana v. Holder , 558 U.S. 233, 251, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Under that "well-settled" and "strong presumption," McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479, 496, 498, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), when a statutory provision "is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review." Kucana , 558 U.S. at 251, 130 S.Ct. 827 (quoting Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ; internal quotation marks omitted); see McNary , 498 U.S. at 496, 111 S.Ct. 888 ("[G]iven [that] presumption ..., it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review"). The presumption can only be overcome by "clear and convincing evidence" of congressional intent to preclude judicial review. Reno v. Catholic Social Services, Inc. , 509 U.S. 43, 64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (quoting Abbott Laboratories v. Gardner , 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; internal quotation marks omitted); see Cuozzo Speed Technologies, LLC v. Lee , 579 U. S. ----, ---- - ----, 136 S.Ct. 2131, 2140-2141, 195 L.Ed.2d 423 (2016).
We have "consistently applied" the presumption of reviewability to immigration statutes. Kucana , 558 U.S. at 251, 130 S.Ct. 827. And we see no reason to make an exception here. The dissent's "doubts" about the presumption, see post , at 1076 - 1078, do not undermine our recognition that it is a "well-settled" principle of statutory construction, McNary , 498 U.S. at 496, 111 S.Ct. 888. Notably, even the Government does not dispute the soundness of the presumption or its applicability here. See Brief for Respondent 47-48 (arguing only that the presumption is overcome).
As discussed above, we can reasonably interpret the statutory term "questions of law" to encompass the application of law to undisputed facts. See supra, at 1068 - 1069. And as we explain further below, infra , at 1073, interpreting the Limited Review Provision to exclude mixed questions would effectively foreclose judicial review of the Board's determinations so long as it announced the correct legal standard. The resulting barrier to meaningful judicial review is thus a strong indication, given the presumption, that "questions of law" does indeed include the application of law to established facts. That is particularly so given that the statutory context and history point to the same result.
2
Consider next the Limited Review Provision's immediate statutory context. That context belies the Government and the dissent's claim that "questions of law" refers only to "pure" questions and necessarily excludes the application of law to settled facts. See Brief for Respondent 19-26; post , at 1074 - 1076. The Limited Review Provision forms part of § 1252, namely, § 1252(a)(2)(D). The same statutory section contains a provision, § 1252(b)(9), which we have called a " 'zipper clause.' " INS v. St. Cyr , 533 U.S. 289, 313, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). We have explained that Congress intended the zipper clause to "consolidate judicial review of immigration proceedings into one action in the court of appeals." Ibid . (internal quotation marks omitted). The zipper clause reads in part as follows:
"Judicial review of all questions of law and fact , including interpretation and application of constitutional and statutory provisions , arising from any action taken ... to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section." § 1252(b)(9) (emphasis added).
Because it is meant to consolidate judicial review, the zipper clause must encompass mixed questions. Indeed, the clause by its very language includes the "application of [a] statutory provisio[n]." Ibid.
The zipper clause accordingly makes clear that Congress understood the statutory term "questions of law and fact" to include the application of law to facts. Reread the zipper clause: It uses the terms "[ (1) ] questions of law and [ (2) ] fact, including " the "application of " statutes, i.e., the application of law to fact. Ibid. (emphasis added). Thus, there are three possibilities: Congress either used (1) "questions of law," (2) "fact," or (3) the combination of both terms to encompass mixed questions. Even the Government does not argue that Congress used "questions of fact" alone to cover mixed questions. Congress thus either meant the term "questions of law" alone to include mixed questions, or it used both "questions of law" and questions of "fact" to encompass mixed questions. The latter interpretation at the very least disproves the Government's argument that Congress consistently uses a three-part typology, referring to mixed questions separately from questions of law or questions of fact (such that "questions of law" cannot include mixed questions). See Brief for Respondent 21; see also post, at 1074 - 1075 (arguing that this Court has often used that three-part typology and thus "questions of law" must exclude mixed questions). And the former interpretation directly supports the conclusion that "questions of law" includes mixed questions. That interpretation gives "questions of law" the same meaning across both provisions. Notably, when Congress enacted the Limited Review Provision, it added language to the end of the zipper clause (following the language quoted above) to clarify that, except as provided elsewhere in § 1252, " 'no court shall have jurisdiction' " to " 'review ... such questions of law or fact.' " § 106, 119 Stat. 311. There is thus every reason to think that Congress used the phrase "questions of law" to have the same meaning in both provisions.
3
Consider also the Limited Review Provision's statutory history and the relevant precedent. The parties agree that Congress enacted the Limited Review Provision in response to this Court's decision in St. Cyr . See Brief for Respondent 16, 27-31; Brief for Petitioners 31-33. In that case, the Court evaluated the effect of various allegedly jurisdiction-stripping provisions, including the predecessor to § 1252(a)(2)(C). That predecessor (which today is modified by the Limited Review Provision) essentially barred judicial review of removal orders based on an alien's commission of certain crimes. See St. Cyr , 533 U.S. at 298, 311, 121 S.Ct. 2271 (citing § 1252(a)(2)(C) (1994 ed., Supp. V)). This Court interpreted that predecessor and the other purportedly jurisdiction-stripping provisions as not barring (i.e., as permitting) review in habeas corpus proceedings, to avoid the serious constitutional questions that would be raised by a contrary interpretation. See St. Cyr , 533 U.S. at 299-305, 314, 121 S.Ct. 2271.
In doing so, the Court suggested that the Constitution, at a minimum, protected the writ of habeas corpus " 'as it existed in 1789.' " Id., at 300-301, 121 S.Ct. 2271. The Court then noted the kinds of review that were traditionally available in a habeas proceeding, which included "detentions based on errors of law, including the erroneous application or interpretation of statutes." Id., at 302, 121 S.Ct. 2271 (emphasis added). And it supported this view by citing cases from the 18th and early 19th centuries. See id., at 302-303, and nn. 18-23, 121 S.Ct. 2271. English cases consistently demonstrate that the "erroneous application ... of statutes" includes the misapplication of a legal standard to the facts of a particular case. See, e.g., Hollingshead's Case , 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702); King v. Nathan , 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724); King v. Rudd , 1 Cowp. 331, 334-337, 98 Eng. Rep. 1114, 1116-1117 (K. B. 1775); King v. Pedley , 1 Leach 325, 326, 168 Eng. Rep. 265, 266 (1784). The Court ultimately made clear that "Congress could, without raising any constitutional questions, provide an adequate substitute [for habeas review] through the courts of appeals." St . Cyr. , 533 U.S. at 314, n. 38, 121 S.Ct. 2271.
Congress took up this suggestion. It made clear that the limits on judicial review in various provisions of § 1252 included habeas review, and it consolidated virtually all review of removal orders in one proceeding in the courts of appeals. See § 106(a), 119 Stat. 310-311 (inserting specific references to 28 U. S. C. § 2241 and " 'any other habeas corpus provision' "). At the same time, Congress added the Limited Review Provision, which permits judicial review of " 'constitutional claims or questions of law,' " the words directly before us now. 119 Stat. 310.
This statutory history strongly suggests that Congress added the words before us because it sought an "adequate substitute" for habeas in view of St. Cyr 's guidance. See supra, at 1071. If so, then the words "questions of law" in the Limited Review Provision must include the misapplication of a legal standard to undisputed facts, for otherwise review would not include an element that St. Cyr said was traditionally reviewable in habeas.
We reach the same conclusion through reference to lower court precedent. After we decided St. Cyr , numerous Courts of Appeals held that habeas review included review of the application of law to undisputed facts. See Cadet v. Bulger , 377 F.3d 1173, 1184 (CA11 2004) ("[W]e hold that the scope of habeas review available in [ 28 U. S. C.] § 2241 petitions by aliens challenging removal orders ... includes ... errors of law, including both statutory interpretations and application of law to undisputed facts or adjudicated facts"); Ogbudimkpa v. Ashcroft , 342 F.3d 207, 222 (CA3 2003) (same); Mu-Xing Wang v. Ashcroft , 320 F.3d 130, 143 (CA2 2003) (same); Singh v. Ashcroft , 351 F.3d 435, 441-442 (CA9 2003) ("[O]ther courts have rejected the Government's argument that only 'purely legal questions of statutory interpretation' permit the exercise of habeas jurisdiction.... We agree with those rulings"). We normally assume that Congress is "aware of relevant judicial precedent" when it enacts a new statute. Merck & Co. v. Reynolds , 559 U.S. 633, 648, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010). Thus, we should assume that Congress, aware of this precedent (and wishing to substitute review in the courts of appeals for habeas review), would have intended the phrase "questions of law" to include the application of a legal standard to established or undisputed facts.
Those who deem legislative history a useful interpretive tool will find that the congressional history of the Limited Review Provision supports this analysis. The House Conference Report refers to St. Cyr and adds that Congress' amendments are designed to "provide an 'adequate and effective' alternative to habeas corpus" in the courts of appeals. H. R. Conf. Rep. No. 109-72, p. 175 (2005) (citing St. Cyr , 533 U.S. at 314, n. 38, 121 S.Ct. 2271 ). The Report adds that the amendments "would not change the scope of review that criminal aliens currently receive." H. R. Conf. Rep. No. 109-72, at 175. And as we know, that "scope of review" included review of decisions applying a legal standard to undisputed or established facts. That is what this Court, in St. Cyr , had said was traditionally available in habeas; and it was how courts of appeals then determined the scope of habeas review. Notably, the legislative history indicates that Congress was well aware of the state of the law in the courts of appeals in light of St. Cyr . See H. R. Conf. Rep. No. 109-72, at 174 (discussing issues on which the Courts of Appeals agreed and those on which they had split after St. Cyr ). The statutory history and precedent, as well as the legislative history, thus support the conclusion that the statutory term "questions of law" includes the application of a legal standard to established facts.
III
The Government makes two significant arguments that we have not yet discussed. First, it points out that § 1252(a)(2)(C) forbids (subject to the Limited Review Provision) review of a removal order based on an alien's commission of certain crimes. If the words "questions of law" include "mixed questions," then for such aliens, the Limited Review Provision excludes only (or primarily) agency fact-finding from review. But if Congress intended no more than that, then why, the Government asks, did it not just say so directly rather than eliminate judicial review and then restore it for "constitutional claims or questions of law?" Brief for Respondent 49-50.
One answer to this question is that the Limited Review Provision applies to more of the statute than the immediately preceding subparagraph. See § 1252(a)(2)(D) (applying notwithstanding "subparagraph (B) or (C), or in any other provision of this chapter (other than this section)"). Another answer is that Congress did not write the Limited Review Provision on a blank slate. Rather, subparagraph (C) initially forbade judicial review, and Congress then simply wrote another subparagraph reflecting our description in St. Cyr of the review traditionally available in habeas (or a substitute for habeas in the courts of appeals). See supra, at 1070 - 1072. That statutory history also illustrates why the dissent errs in relying so significantly on language in subparagraph (C) proscribing judicial review. See post, at 1075 - 1076, 1078 (referring to the "sweeping" and "broad" language of subparagraph (C)). A broad and sweeping reading of subparagraph (C) was precisely what this Court rejected in St. Cyr , and Congress enacted subparagraph (D) in response to that opinion. Subparagraph (C)-constrained as it is by subparagraph (D)-must thus be read in that context.
Second, the Government argues that our interpretation will undercut Congress' efforts to severely limit and streamline judicial review of an order removing aliens convicted of certain crimes. See Brief for Respondent 29-30; see also post, at 1079, n. 5 (noting that the legislative history indicates that Congress intended to streamline removal proceedings by limiting judicial review). The Limited Review Provision, however, will still forbid appeals of factual determinations-an important category in the removal context. And that Provision, taken together with other contemporaneous amendments to § 1252, does streamline judicial review relative to the post- St. Cyr regime, by significantly curtailing habeas proceedings in district courts.
More than that, the Government's interpretation is itself difficult to reconcile with the Provision's basic purpose of providing an adequate substitute for habeas review. That interpretation would forbid review of any Board decision applying a properly stated legal standard, irrespective of how mistaken that application might be. By reciting the standard correctly, the Board would be free to apply it in a manner directly contrary to well-established law. The Government, recognizing the extreme results of its interpretation, suggested at oral argument that the courts of appeals might still be able to review certain "categori[es]" of applications, such as whether someone being in a coma always, sometimes, or never requires equitable tolling. See Tr. of Oral Arg. 38. The Government, however, left the nature and rationale of this approach unclear. The approach does not overcome the problem we have just raised, and seems difficult to reconcile with the language and purposes of the statute.
* * *
For these reasons, we reverse the Fifth Circuit's "jurisdictional" decisions, vacate its judgments, and remand these cases for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE ALITO joins as to all but Part II-A-1, dissenting.
We granted certiorari to decide whether a denial of equitable tolling for lack of due diligence is reviewable as a "question of law" under 8 U. S. C. § 1252(a)(2)(D). Not content with resolving that narrow question, the Court categorically proclaims that federal courts may review immigration judges' applications of any legal standard to established facts in criminal aliens' removal proceedings. Ante , at 1067. In doing so, the majority effectively nullifies a jurisdiction-stripping statute, expanding the scope of judicial review well past the boundaries set by Congress. Because this arrogation of authority flouts both the text and structure of the statute, I respectfully dissent.
I
Under § 1252(a)(2)(C), "[n]otwithstanding any other provision of law (statutory or nonstatutory), ... no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [certain] criminal offense[s]." This broad jurisdiction-stripping provision is known as the "criminal-alien bar." The only exceptions to the provision's otherwise all-encompassing language are found in § 1252(a)(2)(D), which states that "[n]othing in subparagraph ... (C) ... shall be construed as precluding review of constitutional claims or questions of law." Thus, under the criminal-alien bar, any claim that neither is constitutional nor raises a question of law is unreviewable. Because petitioners raise no constitutional claim and due diligence in the equitable-tolling context is not a "question of law," their claims are unreviewable.
A
Equitable tolling's due-diligence requirement presents a mixed question of law and fact. A litigant will qualify for equitable tolling only if he "has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." Lozano v. Montoya Alvarez , 572 U.S. 1, 10, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014). To determine whether a litigant has exercised due diligence, judges must conduct what this Court has characterized as an " 'equitable, often fact-intensive' " inquiry, considering "in detail" the unique facts of each case to decide whether a litigant's efforts were reasonable in light of his circumstances. Holland v. Florida , 560 U.S. 631, 653-654, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (BREYER, J., for the Court). In other words, courts ask "whether the historical facts found satisfy the legal test," which, as this Court recently (and unanimously) recognized, is a quintessential " 'mixed question' of law and fact." U. S. Bank N. A. v. Village at Lakeridge, LLC , 583 U. S. ----, ----, 138 S.Ct. 96
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_suffic
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
DORSEY v. UNITED STATES.
No. 12294.
United States Court of Appeals Fifth Circuit.
June 3, 1949.
Rehearing Denied Sept. 1, 1949.
Joe Creel, Miami, Fla., Meinhard H. Myerson, Jacksonville, Fla., Dan Chappell, Bart A. Riley, A. C. Dressier, Miami, Fla., for appellant.
Herbert S. Phillips, U. S. Atty., Tampa, Fla., Fred Botts, Asst. U. S. Atty., Miami, Fla., for appellee.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
SIBLEY, Circuit Judge.
Tharp, Howard, Dorsey and Webb were indicted in Count 1 for a conspiracy to violate General Ration Order No. 8 and Third Revised Ration Order No. 3 made under the Second War Powers Act, 50 U. S.C.A.Appendix, § 631 et seq., with respect to rationed sugar; and in Counts 2 and 3 Tharp was charged with substantive offenses with reference to rationed sugar documents ; and in Counts 4 and 5 Howard was charged with similar substantive offenses. Howard pleaded guilty to Counts 4 and 5 and was not tried on Count 1. The other defendants were convicted and sentenced on Count 1 only, and'appealed. Webb was put on probation and has not prosecuted his appeal. Tharp has died and the prosecution has abated as to him. Dorsey’s conviction under Count 1 is now involved. The points argued for him are: 1. That Count 1 should have been dismissed on motion; 2. That several conspiracies were proved instead of the one charged and acquittal should have been directed on motion; 3. That Dorsey was illegally arrested and searched and the evidence so obtained should have been suppressed; 4. The judge misquoted evidence to the jury; and 5. There was other judicial unfairness.
1. The first count, six pages long, is verbose and difficult to follow, but charges a conspiracy lasting from June 1, 1945, to Dec. 1, 1946, to violate the Ration Orders above referred to by securing sugar ration checks for payees not entitled to them or the sugar stated in them; by selling and transferring such checks to persons not entitled to the checks or the sugar; by selling and distributing counterfeit sugar stamps and securing sugar thereon in violation of the Second War Powers Act and the regulations made thereunder; by paying money as bribes to Dorsey and by his receiving the money, Dorsey being a person acting for and in behalf of the United States in an official capacity as a Special Agent in Region Four of the Office of Price Administration, with intent to influence his actions and decisions, and with intent on Dorsey’s part to have his actions and decisions influenced thereby, and to pay him large sums to do or omit to do official acts such as securing official documents, making official investigations, and covering up offenses -and irregularities performed by the other conspirators in the acquisition and use of sugar and sugar documents contrary to the duly promulgated regulations for the control of sugar, a rationed article. Twenty-two overt acts are set forth.
The count is not multifarious. It charges a general plan to subvert the Ration Orders and to aid and cover the unlawful operations by including in it a Special Agent of the Office of Price Administration. It does not allege that the violations of the Orders were to be "wilfully” done, or that Dorsey’s official capacity was known, as would be necessary in charging substantive offenses. But in charging that the plan was to violate the Orders wilfulness is implicit, and a plan to pay Dorsey to violate his official duty implies that they all knew his official capacity. It is well settled that in a charge of. conspiracy to commit offenses the conspiracy is the gist of the offense and that the offenses to be committed need not be alleged with the fullness that would be necessary in prosecuting for the commission of such offenses. Thornton v. United States, 271 U.S. 414, 423, 46 S.Ct. 585, 70 L.Ed. 1013; Williamson v. United States, 207 U.S. 425, 449, 28 S.Ct. 163, 52 L.Ed. 278; Hill v. United States, 4 Cir., 42 F.2d 812. In ruling on the motion to dismiss the court held that such wilfulness and knowledge would have to appear in proof, but that the conspiracy charge was sufficiently made. There was no error.
2. The evidence tended to prove that the defendants other than Dorsey had been operating for some time, but that Dorsey did not enter the picture till October, 1946. His joining the conspiracy at that time did not make a new and independent conspiracy. There was certainly no fatal variance between what was alleged and what was proved. There was no ground for acquittal in this situation.
3. Tharp had been and Dorsey still was connected with the Office of Price Administration, and knew each other well. Howard was a large user of sugar and bought the contraband documents. He was detected and implicated Tharp. Tharp was arrested in Howard’s office by government investigators, who were not arresting officers, in the act of dealing with Howard and was searched and questioned, and he made a sworn written confession charging Dorsey with being a party to the conspiracy, and detailing Dorsey’s dealings. He agreed with the investigators to try to trap Dorsey the next morning at Tharp’s home by giving him two $3,000 checks as having been paid over by Howard for sugar checks furnished by Dorsey. Dorsey met the appointment at Tharp’s home, the investigators being concealed, and there is some conflict as to what occurred, that most unfavorable to Dorsey being that Tharp and Dorsey had some conversation, and then Tharp asked Dorsey if he had picked up the two checks, and Dorsey asked which ones, and Tharp said it was the checks he gave Howard, O. P. A. checks, 50,000# checks. Dorsey said he had checked on it, but it had not come to the Columbia Bank and he did not know what was the matter, they had not received a shipment for a month. Tharp then told Dorsey he delivered the checks to Howard yesterday but Howard did not have the money but gave him these two checks ($3,000 each) to hold till he got the money. Tharp then handed Dorsey the checks and he looked at them and handed them back and said, “That is all right. I can get the money later.” The investigators then arrested Dorsey, searched him and found a little black memorandum book containing addresses, including Tharp’s, and a wallet containing some money and automobile papers. Tharp recanted to a large extent and pleaded not guilty. He and Dorsey moved to suppress the evidence obtained from each by their several arrests. We have no occasion to inquire into the arrest of Tharp, for Dorsey cannot assert Tharp’s right of immunity from unreasonable search. As to Dorsey, we have concluded his arrest though without a warrant, and by persons who were not arresting officers, was lawful. There being no special federal statute on the subject, the arrest in Florida for a federal offense is governed by Florida law. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210. The law of Florida is the common law, except as modified by statute. Florida Statutes Annotated in Sect. 901.15 provide: “A peace officer may without warrant arrest a person: (1) When the person to be arrested has committed a felony or misdemeanor in his presence. * * * (2) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it. (3) When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it. * * * ” These provisions are in line with the common law. 4 Am.Jur., Arrest, Secs. 24, 25, 26; 6 C.J.S., Arrest, § 6. The Florida Statutes make no provision about arrests by a private person. The common law authorizes a private person also to arrest for a felony committed in his presence; or if a felony has been committed, and he has probable cause to believe and does believe the person arrested to be guilty. He can justify his not getting a warrant, though he had opportunity, by proving the arrested person was actually guilty. 4 Am.Jur., Arrest, Secs. 35, 36, 37; 6 C.J.S., Arrest, § 8. See also United States v. Gowen, 2 Cir., 40 F.2d 593, and Brady v. United States, 6 Cir., 300 F. 540, 541. We find but one case in the Florida Reports on the lawfulness of an arrest for a felony by a private person, Poole v. State, 129 Fla. 841, 177 So. 195. The right to arrest was there upheld without other discussion than a1 recital of the circumstances which showed reasonably that the persons arrested had committed or were committing the felony of cow stealing. See as to probable cause, Rogers v. State, 158 Fla. 582, 30 So.2d 625.
In the present case, that a crime of conspiracy was in progress the verdict establishes, as does the evidence. The investigators knew that Howard had been detected, as had Tharp, and both had confessed. Howard and Tharp had accused Dorsey, and what Dorsey did and said in the investigators’ presence tended to confirm the accusation. They had reasonable ground to believe Dorsey was in the conspiracy. The Di Re case, supra, is relied on by Dorsey, but Dorsey is not in the position of Di Re, whom no one had accused and against whom there was no suspicion till he was searched. Dorsey is in the position of Buttita whom the informer had charged with crime and whose arrest was not contested. Dorsey’s arrest being lawful, it was permissible to search him. What was found on him, without detailing it, was of so little importance that it is not likely it influenced the verdict. Dorsey took the stand as a witness, but did not even refer to the occasion of his arrest and what was taken from him by search. There was no error in admitting the evidence.
4. The jury, having retired, returned and asked to have read “the testimony of the witnesses, Mr. Tharp for one.” It was further specified by a juror that they wished what Mr. Tharp said when Mr. Dorsey came into his home, and regarding the two checks. The reporter apparently was not at hand, and the judge said he had fairly complete notes on Mr. Tharp’s testimony and if there was no objection he would review the testimony from the notes. Counsel for both sides agreed. The judge then undertook to state the testimony, asking that if he was mistaken counsel would correct him, and stating it was for the jury ■to.say what the testimony was-. He covered not only what Tharp said, but also what Jett, who made the arrest, testified. There was some discussion with counsel which resulted in agreement as to a point of difference between Tharp and Jett. There was no objection made to going into Jett’s testimony also. There was no error in mentioning it too, and no misquotation was claimed.
5. We find no merit in other complaints about the trial.
The verdict was authorized by the evidence. The judgment is
Affirmed.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_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).
DAVIS v. UNITED STATES.
No. 8113.
Circuit Court of Appeals, Fifth Circuit.
Oct. 29, 1936.
Clifford E. Hay, of Thomasville, Ga., and Lee W. Branch, of Quitman, Ga., for appellant.
T. Hoyt.Davis, H. G. Rawls, Asst. U. S. Atty., and A. Edward Smith, Asst. U. S. Atty., all of Macon, Ga.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
Rehearing denied Dee. 12, 1936. Writ of certiorari denied 57 S. Ct. 433, 81 L. Ed. —,
SIBLEY, Circuit Judge.
The indictment contains fifteen counts, of which the first was stricken on demurrer and the others held good. The verdict was guilty on counts 12, 13, 14, and IS, and not guilty on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11. The judge sentenced generally to imprisonment in a penitentiary for two years and to pay a fine of $100. The twelfth count charged a conspiracy, and by itself would support the sentence. It will suffice to examine the trial as touching this count. While it is assigned as error that the evidence did not warrant the verdict, no motion to the court for an instructed verdict appears so as to raise that question. We have, however, looked into the evidence far enough to see that there was substantial evidence of guilt and mainly a question of the veracity of witnesses. A demurrer questioned count 12 as not sufficiently specific, and a motion to arrest judgment asserted that it was so constructed as not to charge any overt acts and that the verdict was so repugnant to itself as to be void.
The twelfth count charges a conspiracy on a named date in the Valdosta Division of the Middle District of Georgia between the defendant and other named persons “unlawfully within the jurisdiction aforesaid to transport, sell and transfer certain distilled spirits,, to-wit whiskey, the immediate container of which should not and did not then and there have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed on such spirits; and unlawfully within the jurisdiction aforesaid to remove, deposit and conceal certain goods and commodities, towit a large quantity of whiskey, ' for and in respect of which a tax is imposed, with intent to defraud the United States of such tax; and unlawfully within the jurisdiction aforesaid to carry on the business of a retail liquor dealer without having first paid the special tax as required by law; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States. Overt Act One. In furtherance of the said conspiracy and to effect the object thereof the said defendant on or about the 11th day of March, 1934, in Thomas County, within the Valdosta Division of the Middle District of Georgia, did receive from the said Henry W. Grimsley $60.00 in money.” Five other overt acts are similarly charged. The special demurrers complain that sufficient details of the conspiracy are not given, nor any facts to identify the transportation, possession, or sale of the liquor or the container of the liquor, or when, where, or by whom the whisky was removed or concealed, or in what way defendant was carrying on a retail liquor business, seeing that Georgia is a dry state and no such business there could Be taxed by the United States; the allegations of the overt acts are averred to be insufficient as not showing how they were in furtherance of the conspiracy. We think the conspiracy, which is the gist of the offense, is sufficiently stated. The time, place, and persons concerned are set forth, and the purpose of it is alleged to be unlawfully to do acts in reference to whiskywhich the court judicially knows would be a violation of three statutes of the United States, it being indeed alleged that the acts were contrary to the form of the statute. A greater particularity is not necessary and may be impossible. It may be that no particular whisky in any particular containers was contemplated in forming the conspiracy, but any whisky in any sort of containers that might come to hand. Overt acts need not be pleaded with the fullness that would be necessary if they were themselves charged as crimes. They need not in themselves be criminal-. The mere receipt of money ordinarily is- not, but, if done to further an unlawful conspiracy, it completes that crime. The indictment need not explain how the money was to be used or how its receipt tended to carry out the conspiracy. ■ That is matter of proof. The allegations are sufficient on their face. Gantt v. United States (C. C.A.) 108 F. 61. If the defendant was really in doubt as to what transactions were to be proven against him, he should have asked a bill of particulars. We see no indication of surprise in the trial.
Arrest of judgment was sought on the ground that the twelfth count is closed by the words “contrary to the peace and dignity of the United States,” and that the-sentences headed “Overt Act One,” “Overt Act Two,” etc., are no parts of the count, so that no overt acts are charged in it and by consequence no crime. We think that all that is included between the heading “Count Twelve” and the heading “Count Thirteen” is plainly a part of count 12'. The defendant in demurring so thought, for he “demurs to alleged Overt Acts One, etc., of ’ count twelve.” The words “contrary to the peace and dignity of the United States” are not essential to an indictment, Frisbie v. United States, 157 U.S. 160, 161, 15 S.Ct. 586, 39 L.Ed. 657, and their insertion at an unusual place will not invalidate it.
The repugnancy in the verdict grows-out of the fact that counts 13, 14, and 15-allege substantive offenses of possessing unstamped whisky, selling it, and carrying, on a retail liquor business without a license alleged, in general terms, and the jury found the defendant* guilty of them; whereas in prior counts the very same offenses were alleged in the same terms except a difference of a few weeks in the date, and the verdict was not guilty on them. The argument is that 'on such general counts-proof relating to any and all dates within the statute of limitations would be admissible, so that a verdict of not guilty acquits of all such acts within the statute of limitations and might be pleaded as a former acquittal. But these are counts in a single indictment submitted in one trial. There is but one jeopardy, so that a second jeopardy is not involved. Nor can former acquittal be urged; indeed, the way the verdict reads the conviction came first. We think the reasonable construction of the whole verdict is that the jury, having first convicted the defendant of these three offenses on the thirteenth, fourteenth, and fifteenth counts, declined to convict him again on the other equivalent counts. Compare Seiden v. United States (C.C.A.) 16 F.(2d) 197; Steckler v. United States (C.C.A.) 7 F.(2d) 59; Macklin v. United States (C.C.A.) 79 F.(2d) 756, 757. After all, the twelfth count has no twin. There is no acquittal opposing the conviction on it. We find no sufficient reason for reversal, and the judgment 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)". 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_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.
Larry T. VARNUM, Plaintiff-Appellant, v. NU-CAR CARRIERS, INC., Defendant-Appellee.
No. 85-3898.
United States Court of Appeals, Eleventh Circuit.
Nov. 20, 1986.
Rehearing and Rehearing En Banc Denied Dec. 23, 1986.
John W. Pafford, Jacksonville, Fla., for plaintiff-appellant.
Guy O. Farmer, II, Mark V. Young, Smith & Hulsey, Jacksonville, Fla., for defendant-appellee.
Before FAY and JOHNSON, Circuit Judges, and HOFFMAN , Senior District Judge.
Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation.
JOHNSON, Circuit Judge:
This is an appeal from an order granting summary judgment to the defendant. We reverse.
I. BACKGROUND
Plaintiff-appellant Larry Varnum is a truck driver who sought employment with defendant-appellee Nu-Car Carriers, Inc., a common carrier engaged in the transport of new cars. In order to gain employment with Nu-Car, a trucker must purchase his own equipment, including a certain type of tractor-trailer not more than two years old, which equipment costs about $60,000. Appellant negotiated with a representative of appellee in May 1983 regarding employment. During their discussions, the representative told appellant that appellee allocated work according to a first-in-first-out basis that provided equal work opportunities to truckers regardless of their seniority. Truckers were paid about 65% of the gross amount that Nu-Car received for each load the trucker transported; there-. fore, the truckers’ income depended on the availability of loads to transport. The statement concerning the dispatch system was consistent with the collective bargaining agreement in effect at that time between Nu-Car and the union representing Nu-Car’s employees.
The representative also showed appellant computer printouts that indicated that the average monthly gross income for truckers with Nu-Car, based on the past few months, had been about $7,000. The information contained in these printouts was correct.
While appellant was negotiating about employment with Nu-Car, Nu-Car was drafting a proposal to switch to a seniority-based dispatch system. Under this dispatch system, new loads would be assigned to the most senior trucker available. Since there were usually several truckers on hand at the time Nu-Car was needed to transport a load, this system would have a disastrous effect on the new truckers: it would have the effect of laying some of them off. The new system was partially designed to enable Nu-Car to save on the costs of health care, welfare, and pension benefits. Under the new system, Nu-Car would not be required to make a weekly contribution for health care, welfare, and pension benefits for any owner-operator who did not work during a particular week.
There is evidence that the representative for Nu-Car knew of the proposal during the employment negotiations, yet failed to inform appellant of the pending change. Deposition of Paul McAllister, at 37-39; affidavit of Paul McAllister, at 1-2. More significantly, the representative knew that if the change was agreed to, his representation that appellant might earn $7,000 per month would be false.
After June 27, 1983, Nu-Car and the Union began to renegotiate the collective bargaining agreement. These negotiations resulted in a new agreement, concluded on about July 8,1983, which included a change in the dispatch procedure to a seniority-based system.
Appellant began to work for Nu-Car on June 2, 1983. For his first one-and-a-half months of employment, he was dispatched under the first-in-first-out system. The new dispatch system was then put into effect, and Varnum’s income fell sharply. Varnum resigned from Nu-Car in March 1984. At the time he resigned, Varnum had not filed any grievance under the machinery provided by the collective bargaining agreement.
In November 1984, Varnum filed a complaint against Nu-Car in Florida state court alleging that Nu-Car had fraudulently misrepresented to him the conditions of employment in order to induce him to accept employment. Varnum sought compensatory and punitive damages. In December 1984, Nu-Car removed the action to the United States District Court for the Middle District of Florida, based on diversity of citizenship.
In June 1985, Nu-Car moved for summary judgment on three grounds: (1) that the action was preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185 (“Section 301”), which authorizes suits between labor organizations and employers for breach of a collective bargaining agreement; (2) that the action was preempted by the National Labor Relations Act (“NLRA”); and (3) that, because of the nature of the collective bargaining process, Varnum cannot possibly show a prima facie case of fraudulent misrepresentation. In late July 1985, Varnum filed a brief in response to Nu-Car’s motion. A hearing on the motion was held in October 1985 before the district judge. At the conclusion of the hearing, the district judge orally ruled that the terms of Varnum’s employment that were allegedly misrepresented were specifically addressed in the collective bargaining agreement. Therefore, the court held that Varnum’s state law claim was preempted by Section 301 and granted summary judgment in favor of Nu-Car. However, the court gave Varnum 20 days in which to amend the complaint and allege misrepresentations with respect to subjects not covered in the collective bargaining agreement. Varnum did not amend the complaint, and he filed a timely notice of appeal from the order of the district court.
II. FRAUD CLAIM NOT PREEMPTED BY SECTION 301
The essence of appellant’s complaint is that, because Nu-Car’s representative knew that Nu-Car was planning to implement a seniority-based dispatch system, his representation that appellant could expect to gross about $7,000 per month was fraudulent. The district court found that the gravamen of appellant’s complaint was about the change in the dispatch system. The court found that, because the terms of appellant’s employment were established through the collective bargaining agreement, appellant’s complaint related to the collective bargaining agreement itself. Therefore, the court found that appellant’s state court claim was preempted by federal law. The district court relied upon Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359 (5th Cir.1984), in which the court held that where an employee who is covered by a collective bargaining agreement seeks to redress a grievance subject to its terms, he must follow the procedures provided for in the collective bargaining agreement or seek a remedy under Section 301 for violation of that agreement.
The district court misconstrued the essence of appellant’s complaint. Appellant did not complain about the seniority dispatch system itself but, rather, complained about the failure of Nu-Car to inform him of the impending change while inducing him to accept employment. Thus, appellant’s complaint did not go to a term of employment covered by the collective bargaining agreement. Instead, the complaint involved Nu-Car’s conduct prior to appellant’s accepting employment. Because the complaint focused on conduct that occurred prior to the plaintiff’s accepting employment, the case is distinguishable from Eitmann and is not preempted by Section 301. Cf. Belknap, Inc. v. Hale, 463 U.S. 491, 509-11, 103 S.Ct. 3172, 3182-83, 77 L.Ed.2d 798 (state law action for misrepresentation by employees who had replaced strikers and were subsequently discharged, although the replacements had been told prior to their accepting employment that they would be “permanent replacements,” was not preempted by federal labor laws).
III. FRAUD CLAIM NOT PREEMPTED BY NATIONAL LABOR RELATIONS ACT
Appellee’s second argument as to why summary judgment was appropriate is that the NLRA preempts a fraud claim based on the failure of a company to disclose an impending change to a prospective employee, where the company has not yet proposed the change to the union. Specifically, appellee contends that to inform a prospective employee of the company’s bargaining proposal to change to a seniority-based dispatch system would have been “direct dealing” which was prohibited under the Section 9(a) of the NLRA. Appellee argues that this state law action therefore seeks to regulate conduct which is prohibited, and thus preempted, by the NLRA.
This argument would make sense if appellant’s claim was that Nu-Car had a duty to disclose the fact that it was drafting a proposed change in the seniority system. However, appellant did not claim that Nu-Car had a duty to make such a disclosure; rather, appellant claimed that in the absence of such a disclosure Nu-Car should not have told him that he could earn $7,000 a month. Since appellant is not claiming that Nu-Car should have been required to do something prohibited under the NLRA, appellant’s claim should not be preempted by that act.
IV. FRAUD CLAIM DOES NOT FAIL AS A MATTER OF LAW
Appellee’s final argument is that Nu-Car’s representations during negotiations with Varnum could not have been fraud as a matter of law. Appellee contends that prior to appellant’s accepting employment with Nu-Car, the first-in-first-out dispatch system was in effect and Nu-Car could not have predicted with any certainty that the union and Nu-Car would agree on the proposed change to the seniority-based system.
The evidence was uncontroverted that the dispatch system in effect during the employment negotiations was not seniority-based. However, there was deposition and affidavit testimony by Paul McAllister, the hiring representative for Nu-Car, indicating that at the time he negotiated with Varnum he knew of the company’s plan to propose a change to a seniority-based system. The evidence thus shows that, at the time Nu-Car’s representative indicated to Varnum that drivers typically grossed $7,000 per month, he knew that the company was planning to propose a change to a dispatch system under which new drivers such as Varnum would earn substantially less. Under Florida law, this representation regarding what Varnum could expect to earn, in the absence of any disclosure regarding the impending change in the seniority system, could have been fraud. See Hamlen v. Fairchild Industries, Inc., 413 So.2d 800, 801 (Fla. 1st Dist.Ct.App.1982). Whether or not the representation actually was fraud is an issue for the trier of fact to decide.
V. CONCLUSION
For the reasons expressed above, the judgment of the district court granting summary judgment in favor of the defendant is REVERSED. This case is REMANDED for further proceedings.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Odie HILL, Appellant, v. MORGAN POWER APPARATUS CORPORATION, Appellee (two cases).
Nos. 18357, 18358.
United States Court of Appeals Eighth Circuit.
Nov. 22, 1966.
Henry Woods, of McMath, Leather-man, Woods & Youngdahl, Little Rock, Ark., for appellant.
William H. Sutton, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for appellee.
Before VOGEL, Chief Judge, GIBSON, Circuit Judge, and REGISTER, District Judge.
PER CURIAM.
Plaintiff-appellant, a citizen of Arkansas, was injured on October 24, 1964, in an accident in Arkansas while using a defective swivel manufactured by defendant-appellee, a Washington corporation. Two separate actions were commenced by plaintiff-appellant, one in warranty and one in tort, alleging that the swivel was defective and was the cause of plaintiff-appellant’s injury. In each case plaintiff-appellant attempted to obtain jurisdiction over the defendantappellee by virtue of provisions of Ark. Stat.Ann. § 27-2502:
“Bases of personal jurisdiction ovei persons outside this state.”
In interpreting the Arkansas statute, Judge Young found it inapplicable and accordingly quashed the service in both cases. Judge Young’s opinion is published in D.C., 259 F.Supp. 609. Because he has arrived at a permissible conclusion with reference to Arkansas law and a conclusion with which we are in complete accord, we affirm on the basis of his opinion as published.
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:
|
sc_authoritydecision
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
NICHOLS v. UNITED STATES
No. 92-8556.
Argued January 10, 1994
Decided June 6, 1994
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, & alia, Kennedy, and Thomas, JJ., joined. Souter, J., filed an opinion concurring in the judgment, post, p. 749. Blackmun, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 754. Ginsburg, J., filed a dissenting opinion, post, p. 765.
William B. Mitchell Carter, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was Mary Julia Foreman.
Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Michael R. Dreeben, and Thomas E. Booth.
Susan N. Herman and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Chief Justice Rehnquist
delivered the opinion of the Court.
In this case, we return to the issue that splintered the Court in Baldasar v. Illinois, 446 U. S. 222 (1980): Whether the Constitution prohibits a sentencing court from considering a defendant’s previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense.
In 1990, petitioner Nichols pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U. S. C. § 846. Pursuant to the United States Sentencing Commission’s Guidelines (Sentencing Guidelines), petitioner was assessed three criminal history points for a 1983 federal felony drug conviction. An additional criminal history point was assessed for petitioner’s 1983 state misdemeanor conviction for driving under the influence (DUI), for which petitioner was fined $250 but was not incarcerated. This additional criminal history point increased petitioner’s Criminal History Category from Category II to Category III. As a result, petitioner’s sentencing range under the Sentencing Guidelines increased from 168-210 months (under Criminal History Category II) to 188-235 months (under Category III).
Petitioner objected to the inclusion of his DUI misdemeanor conviction in his criminal history score because he was not represented by counsel at that proceeding. He maintained that consideration of that uncounseled misdemeanor conviction in establishing his sentence would violate the Sixth Amendment as construed in Baldasar, supra. The United States District Court for the Eastern District of Tennessee found that petitioner’s misdemeanor conviction was uncounseled and that, based on the record before it, petitioner had not waived his right to counsel. 763 F. Supp. 277 (1991). But the District Court rejected petitioner’s Baldasar argument, explaining that in the absence of a majority opinion, Baldasar “stands only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term.” 763 F. Supp., at 279. Because petitioner’s offense was already defined as a felony, the District Court ruled that Baldasar was inapplicable to the facts of this case; thus, petitioner’s constitutional rights were not violated by using his 1983 DUI conviction to enhance his sentence. It sentenced petitioner to the maximum term allowed by the Sentencing Guidelines under its interpretation of Baldasar, a term 25 months longer than if the misdemeanor conviction had not been considered in calculating petitioner’s criminal history score.
A divided panel of the Court of Appeals for the Sixth Circuit affirmed. 979 F. 2d 402 (1992). After reviewing the fractured decision in Baldasar and the opinions from other Courts of Appeals that had considered the issue, the court held that Baldasar limits the collateral use at sentencing of a prior uncounseled misdemeanor conviction only when the effect of such consideration is to convert a misdemeanor into a felony. The dissent, while recognizing that “numerous courts have questioned whether [Baldasar] expresses any single holding, and, accordingly, have largely limited Baldasar to its facts,” nevertheless concluded that Baldasar proscribed the use of petitioner’s prior uncounseled DUI conviction to enhance his sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408 (citations omitted).
We granted certiorari, 509 U. S. 953 (1993), to address this important question of Sixth Amendment law, and to thereby resolve a conflict among state courts as well as Federal Courts of Appeals. We now affirm.
In Scott v. Illinois, 440 U. S. 367 (1979), we held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counsel. Our decision in Scott was dictated by Argersinger v. Hamlin, 407 U. S. 25 (1972), but we stated that “[e]ven were the matter res nova, we believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.” Scott, supra, at 373.
One year later, in Baldasar v. Illinois, 446 U. S. 222 (1980), a majority of the Court held that a prior uncounseled misdemeanor conviction, constitutional under Scott, could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldasar provided no rationale for the result; instead, it referred to the “reasons stated in the concurring opinions.” 446 U. S., at 224. There were three different opinions supporting the result. Justice Stewart, who was joined by Justices Brennan and Stevens, stated simply that the defendant “was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense,” and that “this prison sentence violated the constitutional rule of Scott . . . .” Ibid. Justice Marshall, who was also joined by Justices Brennan and Stevens, rested his opinion on the proposition that an uncounseled misdemeanor conviction is “not sufficiently reliable” to support imprisonment under Argersinger, and that it “does not become more reliable merely because the accused has been validly convicted of a subsequent offense.” 446 U. S., at 227-228. Justice Blackmun, who provided the fifth vote, ádvanced the same rationale expressed in his dissent in Scott — that the Constitution requires appointment of counsel for an indigent defendant whenever he is charged with a “nonpetty” offense (an offense punishable by more than six months’ imprisonment) or when the defendant is actually sentenced to imprisonment. 446 U. S., at 229-230. Under this rationale, Baldasar’s prior misdemeanor conviction was invalid and could not be used for enhancement purposes because the initial misdemeanor was punishable by a prison term of more than six months.
Justice Powell authored the dissent, in which the remaining three Members of the Court joined. The dissent criticized the majority’s holding as one that “undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place.” Id., at 231. The dissent opined that the majority’s result misapprehended the nature of enhancement statutes that “do not alter or enlarge a prior sentence,” ignored the significance of the constitutional validity of the first conviction under Scott, and created a “hybrid” conviction, good for the punishment actually imposed but not available for sentence enhancement in a later prosecution. 446 U. S., at 232-233. Finally — and quite presciently — the dissent predicted that the Court’s decision would create confusion in the lower courts. Id., at 234.
In Marks v. United States, 430 U. S. 188 (1977), we stated that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....’” .Id., at 193, quoting Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or “narrowest grounds” that represents the Court’s holding. See, e. g., United States v. Castro-Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is Justice Blackmun’s rationale, Santillanes v. United States Parole Comm’n, 754 F. 2d 887, 889 (CA10 1985); yet another has concluded that the “consensus” of the Baldasar concurrences is roughly that expressed by Justice Marshall’s concurring opinion. United States v. Williams, 891 F. 2d 212, 214 (CA9 1989). State courts have similarly divided. The Sentencing Guidelines have also reflected uncertainty over Baldasar. We think it not useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U. S. 808, 829-830 (1991); Miller v. California, 413 U. S. 15, 24-25 (1973).
Five Members of the Court in Baldasar — the four dissenters and Justice Stewart — expressed continued adherence to Scott v. Illinois, 440 U. S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id., at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id., at 372.
We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be re-
lied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, “[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962).” 446 U. S., at 232.
Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972). “Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant.” Wisconsin v. Mitchell, 508 U. S. 476, 485 (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant’s prior convictions. Sentencing courts have not only taken into consideration a defendant’s prior convictions, but have also considered a defendant’s past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U. S. 241 (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U. S. 79 (1986). There we held that the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty.
Thus, consistently with due process, petitioner in the present case could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise to the previous DUI offense. And the state need prove such conduct only by a preponderance of the evidence. Id., at 91. Surely, then, it must be constitutionally permissible to consider a prior uncounseled misdemeanor conviction based on the same conduct where that conduct must be proved beyond a reasonable doubt.
Petitioner contends that, at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime. No such requirement was suggested in Scott, and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level — that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly — would merely tell him what he must surely already know.
Today we adhere to Scott v. Illinois, supra, and overrule Baldosar. Accordingly we hold, consistent with the Sixth and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.
The judgment of the Court of Appeals is therefore
Affirmed.
At the time of his conviction, petitioner faced a maximum punishment of one year imprisonment and a $1,000 fine. Georgia law provided that a person convicted of driving under the influence of alcohol “shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than ten days nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment.” Ga. Code Ann. §40.6-391(c) (1982).
There are six criminal history categories under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (USSG) eh. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant’s criminal history category is determined by the number of his criminal history points, which in turn is based on his prior criminal record. Id., ch. 4, p. A.
The Sentencing Table provides a matrix of sentencing ranges. On the vertical axis of the matrix is the defendant’s offense level representing the seriousness of the crime; on the horizontal axis is the defendant’s criminal history category. The sentencing range is determined by identifying the intersection of the defendant’s offense level and his criminal history category. Id., ch. 5, pt. A (Sentencing Table).
The Government contends that, even if Baldasar v. Illinois, 446 U. S. 222 (1980), prohibits using the prior uncounseled misdemeanor conviction to enhance petitioner’s sentence, the District Court applied the wrong legal standard in finding no valid waiver of the right to counsel. Based on Johnson v. Zerbst, 304 U. S. 458, 467-469 (1938), and Parke v. Raley, 506 U. S. 20, 28-29 (1992), the Government argues that petitioner failed to carry his burden to establish the absence of a valid waiver of counsel. We need not address this contention due to our resolution of the Baldasar issue.
Petitioner’s instant felony conviction was punishable under statute by not less than 10 years’ imprisonment and not more than life imprisonment. See 21 U. S. C. § 841(b)(1)(B); 979 F. 2d 402, 413-414, 417-418 (CA6 1992).
The court also stated that its decision was “logically compelled” by Charles v. Foltz, 741 F. 2d 834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1986), 979 F. 2d, at 416-416, 418 (“ ‘[Ejvidence of prior uncounselled misdemeanor convictions for which imprisonment was not imposed . . . may be used for impeachment purposes’ ”).
Cf. Lovell v. State, 283 Ark. 426, 428, 678 S. W. 2d 318, 320 (1984) (.Baldasar bars any prior uncounseled misdemeanor conviction from enhancing a term of imprisonment following a second conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 655, 557 (1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340, 1347 (Baldasar bars an enhanced penalty only when it is greater than that authorized in the absence of the prior offense or converts a misdemeanor into a felony), cert. denied, 498 U. S. 967 (1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990) (following the approach of Justice Blackmun, thereby limiting enhancement to situations where the prior uncounseled misdemeanor was punishable by six months’ imprisonment or less), aff’d, 585 So. 2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the collateral use of valid, uncounseled misdemeanor convictions).
The Sixth Circuit expressly joined the Fifth and Second Circuits in essentially limiting Baldasar to its facts. See Wilson v. Estelle, 625 F. 2d 1158, 1159, and n. 1 (CA5 1980) (a prior uncounseled misdemeanor conviction cannot be used under a sentence enhancement statute to convert a subsequent misdemeanor into a felony with a prison term), cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega, 945 F. 2d 496, 600 (CA2 1991) (Baldasar does , not apply where “the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony”), cert, denied sub nom. Cintron-Rodriguez v. United States, 507 U. S. 908 (1992). But see, e. g., United States v. Brady, 928 F. 2d 844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any imprisonment in a subsequent case imposed because of an uncounseled conviction in which the right to counsel was not waived).
In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived. Gideon v. Wainwright, 372 U. S. 335 (1963). We have held that convictions gained in violation of Gideon cannot be used “either to support guilt or enhance punishment for another offense,” Burgett v. Texas, 389 U. S. 109, 115 (1967), and that a subsequent sentence that was based in part on a prior invalid conviction must be set aside, United States v. Tucker, 404 U. S. 443, 447-449 (1972).
See n. 7, supra.
The 1989 version of the Sentencing Guidelines stated that, in determining a defendant’s criminal history score, an uncounseled misdemeanor conviction should be excluded only if it “would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution.” USSG §4A1.2, Application Note 6 (Nov. 1989). Effective November 1,1990, the Sentencing Commission amended §4A1.2 by deleting the above quoted phrase and adding the following statement as background commentary: “Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed.” USSG App. C, amdt. 363 (Nov. 1993). When the Sentencing Commission initially published the amendment for notice and comment, it included the following explanation: “The Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U. S. 222 (1980).” 55 Fed. Reg. 5741 (1990).
Of course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors. Indeed, many, if not a majority, of States guarantee the right to counsel whenever imprisonment is authorized by-statute, rather than actually imposed. See, e. g., Alaska Stat. Ann. § 18.85.100 (1991) (“serious” crime means any crime where imprisonment authorized); Ariz. Eule Crim. Proc. 6.1(b) (indigent defendant shall be entitled to have attorney appointed in any criminal proceeding that may result in punishment by loss of liberty, or where court concludes that appointment satisfies the ends of justice); Cal. Penal Code Aim. § 15 (West 1988), Cal. Penal Code Arm. §858 (West 1985); Brunson v. State, 182 Ind. App. 146, 394 N. E. 2d 229 (1979) (right to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I, § 13); N. H. Rev. Stat. Ann. § 604-A:2 (1986 and Supp. 1992).
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_1_4
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 "transportation". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE TRANSPORTATION COMPANY, Respondent.
No. 91-1061.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 17, 1991.
Decided May 22, 1992.
Judith A. Dowd, N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Nancy B. Hunt (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.
Leonard R. Kofkin, Fagel & Haber, Chicago, Ill. (argued), for respondent.
Before BAUER, Chief Judge, CUDAHY and EASTERBROOK, Circuit Judges.
BAUER, Chief Judge.
Advance Transportation Company (“Advance” or “the company”) is an interstate and local trucking company headquartered in Milwaukee, Wisconsin, and which maintains forty terminals. Local Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (“the union”), is the recognized collective bargaining representative for approximately 200 of the company’s Bedford Park terminal employees. Advance employs two types of drivers at its Bedford Park terminal: about eighty seniority or regular drivers, and up to fifteen replacement drivers who fill in for absent regular drivers. The regular drivers are paid more than replacement drivers, and enjoy all the benefits of union representation, such as accrual of bargaining unit seniority and availability of a grievance procedure. Replacement drivers can become regular drivers but, under an agreement with the union, only on a seniority basis. As part of the company’s compulsory profit-sharing program, it withholds twelve percent from the wages of both regular and replacement drivers. The profit-sharing program is the centerpiece around which the facts of this case revolve.
In April 1985, Advance offered a voluntary profit-sharing plan to all of its union-represented employees. The plan allowed the company to deduct twelve percent from employees’ wages, ten percent of which it retained and the remaining two percent it used to purchase stock in the company for the participating employees. Daniel Tuffs, a regular driver for Advance since February 1979, was one of the employees who opted not to participate in this voluntary plan. Ten months after the plan was initiated, in February 1986, Advance’s regional manager Thomas Horvath called Tuffs into his office to tell him that Advance wanted one hundred percent participation in the plan. Tuffs continued to decline, explaining that he could not afford to participate. Horvath responded that if Tuffs did not participate in the plan, there would be a layoff of employees and Tuffs would be at fault.
In late 1987, during negotiations between the company and the union for a three-year contract, the company proposed that its profit-sharing plan become compulsory for a five-year period. The union responded it would agree to this proposal only if a majority of the employees approved it in a special referendum. The company agreed, and a referendum was called. A few days before the vote, the company held an informational meeting for the Bedford Park employees. After Glen Carroll, the terminal’s operations manager, spoke in favor of the plan, Tuffs spoke up and called for a show of hands of those in favor of the plan. Only two employees indicated approval.
On the morning of December 18, 1987, the day of the referendum, Tuffs drafted, signed, and circulated a petition addressed to the union that indicated the objection of its signers to imposition of a compulsory profit-sharing plan by a simple majority vote. Including Tuffs, eighty-two employees signed the petition. Both Mike Zu-dycki, the terminal’s office manager, and Horvath, the regional manager, saw Tuffs collecting signatures on the petition. In fact, Tuffs offered it to Zudycki, who responded that Tuffs should “get that thing away from me.” The petition proved to be unnecessary, however, because the compulsory profit-sharing plan was defeated by a vote of 123 to 67.
The union and the company continued their contract negotiations with the company insisting that it needed a compulsory profit-sharing plan for its economic survival. It requested the union to join it in another referendum. The union declined, but countered that the employees might accept a compulsory plan if it were for only three years instead of five, and if it were accompanied by a pay increase greater than that required by the National Master Freight Agreement. The company agreed, and began campaigning among Advance employees for approval of the revised compulsory profit-sharing plan. The second referendum was held on February 25, 1988, and resulted in a majority of Advance employees approving the compulsory profit-sharing plan. Although the union refused to participate in this second referendum, it accepted the results and entered into the compulsory profit-sharing agreement for Advance employees as riders to the April 1, 1988, through March 31, 1991, collective bargaining agreements.
After the company and the union entered into the new contract, sixty Advance employees, Tuffs among them, filed grievances objecting to imposition of the compulsory profit-sharing plan. On April 27, 1988, the grievances were heard before a grievance board that included Advance’s operations manager, Glen Carroll. Tuffs spoke out at the hearing, stating, “This is an example of what happens when you withhold monies from a person’s check against their will and without their approval, and this thing will continue until people are given a voluntary choice on profit-sharing.” Both the plan and employee dissatisfaction with it, however, continued. On April 14, 1988, two weeks after the plan was instituted, Advance hired Donovan Bauldry as a replacement driver. Bauldry added his voice to those unhappy with the compulsory plan, and would openly joke about it over the company radio.
The company distributed the first profit-sharing checks to employees on August 25. Tuffs’s check was in the amount of $8.71. After receiving their checks, Tuffs and three others took them to Zudycki’s office. Tuffs informed Zudycki of his pending, unresolved grievance. He insisted he was an unwilling participant in the program, and felt that if he accepted the check he would be indicating his approval of the plan. He therefore refused the check and placed it on Zudycki’s desk. Zudycki responded that the check belonged to Tuffs, that the company wanted him to have it. Tuffs continued to refuse it and left Zu-dycki’s office. The next day, Tuffs found the check in his box at the terminal where he received his messages and paychecks. Tuffs removed the check from his box and this time took it to Advance’s regional manager, Thomas Horvath, reiterating what he said to Zudycki the day before. When Hor-vath told him the same thing Zudycki had, Tuffs left the check on Horvath’s desk and walked out. Again, the next day, Tuffs found the check back in his box. This time he just left it there.
About two weeks after the profit-sharing checks were distributed, and Tuffs refused to accept his, dispatch manager Richard Blake called Bauldry into his office. Baul-dry had accepted his profit-sharing check, but had not yet cashed it, awaiting a resolution of the grievance procedures. Blake informed Bauldry that he heard that Baul-dry had made disparaging remarks about the company. Even though Bauldry denied having done so, Blake cautioned him to stop making jokes and comments to other drivers about the profit-sharing plan. The company, Blake explained, needed the money from the plan to survive. He continued that the company was aware that other drivers were opposed to the plan, it knew who they were, and it would “get” them all eventually, that is, they would lose their jobs driving for Advance. Blake warned Bauldry not to get involved with those drivers, not to associate with them. He reassured Bauldry that he was aware he was a hard worker, that he even refrained from taking coffee breaks, and that Bauldry would be in the next group of replacement drivers who would receive regular driver status. He then finished by reminding Bauldry not even to say hello to the dissident drivers.
On Thursday, September 29, Tuffs received a note from Blake informing him that he was suspended from work on Friday for failure to follow instructions, and that a letter would follow. The company and the union’s agreement permits the company to discharge any employee who violates the same rule three times within a six month period. One of those rules is that an employee must follow instructions. Blake explained to Tuffs on Friday morning that, after making a C.O.D. delivery, Tuffs failed to obtain a certified check as instructed, accepting a company check instead. This was Tuffs’s second warning for failure to follow instructions since August 12, Blake reminded Tuffs. Blake told Tuffs he was suspended for that day, but should report back for work on Monday. Tuffs left.
On Saturday, however, Tuffs received a telegram from Zudycki informing him that his employment with Advance was terminated, effective immediately, noting a letter would follow. The telegram was dated September 30, the day before. On Monday, October 3, Tuffs called Zudycki for an explanation before a letter arrived. Zudycki told him that he was fired because he took his coffee break before his first delivery, another violation of the rule that employees must follow instructions. The next day Tuffs received two letters from Blake. The first, dated September 30, was entitled “Second Warning Letter with One Day Suspension.” This letter reminded Tuffs that he was issued a warning letter on August 12 for failure to follow instructions, and that on September 28 he again failed to follow instructions by stopping for a coffee break before making his first delivery of the day. The letter concluded that Tuffs was suspended from work for one day, Friday, September 30. The second letter Tuffs received from Blake was entitled “Letter of Termination,” and was dated October 3. This letter detailed the three rules violations that lead to Tuffs’s termination. These rules violations, the letter explained, were (1) the August 12 warning and a one day suspension for failure to follow instructions; (2) the September 30 warning and suspension for taking a coffee break on the 28th before his first stop, which is a failure to follow instructions; and (3) the third violation of that rule, also on September 28, by failing to obtain a certified check after making a C.O.D. delivery. The letter concluded that, in view of his failure to follow company rules, Tuffs’s employment with Advance was terminated.
Throughout that fall Bauldry continued to receive assignments from Advance dispatchers. He received no assignments, however, after December 14, 1988, and on December 28 Blake sent him a letter informing him that Advance was discontinuing his service as a replacement driver as of that date.
Both Tuffs and Bauldry filed complaints against Advance with the National Labor Relations Board (the “Board” or “NLRB”). The complaints charge that Advance fired Tuffs and Bauldry for engaging in protected activity, in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). The complaints were consolidated for hearing before an Administrative Law Judge (“AU”). In his Decision, the AU concluded that Tuffs’s termination violated the Act, although Bauldry’s did not. Both the company and the NLRB’s General Counsel filed exceptions to the AU’s Decision. On September 27, 1990, the Board issued its Decision and Order, which affirmed the AU’s conclusion that Advance’s termination of Tuffs violated the Act, but reversed his decision that its termination of Bauldry did not. Among other things, the Board ordered Advance to offer both Tuffs and Bauldry reinstatement. The Board now seeks enforcement of its Order. For the reasons that follow, the Order of the NLRB is enforced.
I.
Under § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), an employer engages in an unfair labor practice if it interferes with, restrains or coerces employees who exercise their rights under § 7 of the Act. Section 7 protects employee involvement in concerted activities, most notably labor organizations. 29 U.S.C. § 157. Before the AU, the General Counsel claimed that Advance’s motivation to terminate Tuffs and Bauldry was that they engaged in protected activities. Advance countered that its action in both cases was for good cause.
These conflicting claims brought this case within the parameters of NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Under Wright Line, the General Counsel carries the burden of showing by a preponderance of the evidence that the employer’s action was motivated in any way by a desire to impede protected concerted activity. NLRB v. Transportation Management Corp., 462 U.S. 393, 399, 103 S.Ct. 2469, 2473, 76 L.Ed.2d 667 (1983). If he succeeds, the company then has the burden of showing, also by a preponderance, that it based its discharge decision on unprotected conduct as well, and that it would have fired the employee anyway. Id. at 400, 103 S.Ct. at 2473-74. Our task on review is simply to determine if the Board’s findings and conclusions are supported on the record as a whole by substantial evidence, even if we could have concluded differently after a plenary review. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-65, 95 L.Ed. 456 (1951).
As we recently noted, “substantial evidence may be less than a preponderance of the evidence, however, and ‘a reviewing body may not set aside an inference merely because it finds the opposite conclusion more reasonable or because it questions the factual basis.’ ” Freeman United Coal Mining Co. v. Stone, 957 F.2d 360, 362 (7th Cir.1992) (quoting Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir.1988)). The substantial evidence standard is the same even if the Board and the AU disagree, as they did concerning the termination of Bauldry. Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468-69.
Advance asserts that the AU misapplied Wright Line to impose upon it “an unattainable and impermissible burden to prove that Tuffs [sic] termination was absolutely sterile and without ‘any’ unlawful motivation_” Respondent’s Brief at 11. The company claims further that this circuit “requires a greater burden of proof on the General Counsel than merely to show that some unlawful motivation ‘in part’ contributed to the result,” citing generally Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th Cir.1989). These two contentions misstate both the record and the law. The ALJ correctly stated the requirements of Wright Line, see AU’s Decision (“JD”) at 19, lines 7-13, and correctly applied them to the facts in this case:
The questions that remain are whether Respondent knew or suspected that Tuffs and Bauldry engaged in the protected, concerted activity of opposing the compulsory profit-sharing program, whether Respondent bore any animus toward such protected, concerted activity, whether any such animus was a motivating factor in the discharge of Tuffs and Bauldry, and whether Respondent has shown that, even in the absence of any such motivation, Tuffs and Bauldry would have been discharged.
Id. We see nothing in this language that required Advance to prove its termination of these two employees was completely aseptic, as Advance claims. We also see nothing in Northern Wire Corp.’s language to suggest that there is a greater burden on the General Counsel than to prove that Advance’s action was motivated in some part by the employees’ protected activities. Nor is the company’s burden any greater than to prove that, evidence of union animus notwithstanding, it would have fired these employees anyway. The Supreme Court recently has referred to these as balanced burdens, Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989), each equally weighted by a preponderance of the evidence. Id. at 258, 109 S.Ct. at 1794-95.
II.
We start, then, by determining if there is substantial evidence to support the Board’s conclusion that the General Counsel met his burden of showing by a preponderance of the evidence that Advance’s decision to terminate Tuffs and Bauldry was motivated in any way by animus toward their protected activity. As the AU noted, this requires (1) evidence of the company’s knowledge of that protected activity; (2) evidence of animus toward that activity; and (3) evidence that the company was motivated by that animus.
The record discloses that at the time the profit-sharing plan was voluntary the company was aware Tuffs refused to participate in it. Indeed, regional manager Hor-vath informed Tuffs that the company wanted one hundred percent participation in the plan, and if he refused and a layoff resulted Tuffs would be responsible. The company also was aware of Tuffs’s activities in opposition to a compulsory plan. At a meeting in which operations manager Carroll was present Tuffs spoke against the plan and asked for a show of hands of employees who favored it. On the day of the vote, Tuffs prepared, signed, and circulated a petition expressing the opposition of its signators. Among those to whom Tuffs presented the petition for signature was company manager Zudycki, who responded hostilely. Although the first referendum failed, after the plan was approved in a second referendum, Tuffs and several other employees filed grievances. During the grievance hearing attended by Carroll, Tuffs informed Carroll that employee opposition would continue. When the plan became effective, Tuffs refused to accept the profit-sharing distribution check, repeatedly tried to return it, and ultimately left it in his message box at the terminal. Approximately two weeks after these events, dispatch manager Blake instructed Bauldry to stop making jokes about the plan and to disassociate himself from employees who opposed it. Further, Blake informed Baul-dry that the company knew the identities of the dissidents and would fire them. Clearly, then, the body of evidence to establish the company’s knowledge of the employees protected activity is substantial.
Much of the evidence recited above establishes animus as well as knowledge, including Horvath’s statement to Tuffs suggesting he would be responsible for a layoff if he failed to participate in the voluntary plan. The AU concluded that the clearest evidence of animus was Blake’s statements to Bauldry that the company knew who opposed the compulsory plan and would terminate their employment, and that although Blake was a hard worker, continued association with those employees would jeopardize to his advancement to regular driver status. These facts establish animus.
The AU found, and we have no reason to dispute, that the company believed the compulsory plan was necessary for its economic survival. That is strong circumstantial evidence of the company’s motive to discharge employees who opposed the plan. As we have said, “The Board is ‘free to rely on circumstantial as well as direct evidence’ in assessing motive.” NLRB v. Jakel Motors, Inc., 875 F.2d 644, 646 (7th Cir.1989) (quoting NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1266, 1267, 1267-68 (7th Cir.1987)). Moreover, Blake’s statement to Bauldry that the company knew who the employees were who opposed the plan and that they would be fired is direct evidence of motive. We conclude, therefore, as did the AU and the Board, that the General Counsel met his Wright Line burden of proving that Advance’s action to terminate Tuffs and Baul-dry was motivated in part by their protected activity.
III.
We now must determine whether the company met its burden of proving by a preponderance of the evidence that it would have discharged Tuffs and Bauldry notwithstanding their protected activities. To that end, we review in turn the evidence regarding each employee’s discharge.
A. Daniel Tuffs
Advance claims that it discharged Tuffs solely for violating its union-approved, three-strike disciplinary policy. There is no dispute concerning Tuffs’s first strike, a warning and one-day suspension for failure to follow orders on August 12, 1988. Nor is there any dispute about the other two, that Tuffs failed to collect a cashier’s check for a C.O.D. delivery on September 28 and that he took a coffee break before his first morning delivery on September 29. The dispute centers on the significance of which of these two latter violations constituted the third, and whether the rule prohibiting coffee breaks before first deliveries was enforced consistently as to all employees, or, as the AU concluded, used as a pretext to fire Tuffs.
Recall that on Thursday, September 29, Tuffs received a note informing him he was suspended from work on the following day. On Friday Tuffs went to the office to find out why. Blake told him it was for the cashier’s check violation. On Saturday, October 1, Tuffs received a telegram dated September 30 informing him he was terminated, and that a letter would follow. On Monday, October 3, Tuffs called the office manager, Zudycki, to find out why. Zu-dycki told him it was because of his violation of the coffee break rule. Then, on Tuesday, the 4th, Tuffs received two letters from Blake. The first, dated September 30, served as notice of his second violation for breaking the coffee break rule. The second letter, dated October 3, served as notice of termination for his third violation for not collecting a cashier’s check.
The AU concluded that the manner in which these events unfolded indicated that after Tuffs left on the 30th Blake went in search of a third, colorable violation to support Tuffs’s discharge. His search was successful — he discovered Tuffs’s coffee break violation. Suspecting that a violation uncovered after an unlawfully motivated search would not support a discharge, however, Blake revised history to reflect that Tuffs’s coffee break violation was his second and his cashier’s check violation was his third. Advance argues that the AU’s summary of the facts surrounding Tuffs’s discharge and the conclusion he drew from those facts indicates the AU was consumed by an issue of no consequence. On the contrary. The AU’s interpretation of events is entirely consonant with a company that, as Blake told Baul-dry, knew which of its employees was opposed to its profit-sharing plan and intended to get rid of them.
Regardless of the conditions under which Tuffs’s coffee break violation was discovered, or its numerical position in a sequence of three violations, the AU concluded that Advance’s use of that violation to terminate Tuffs was “the epitome of discriminatory action_” JD at 23. He based this conclusion on evidence that showed Tuffs was singled out for a warning, leading to discharge, for a coffee break violation while other drivers customarily were treated with verbal reminders of the company’s policy and, even then, only after repeated violations. Critical to the AU’s conclusion were Tuffs’s trip sheets for the sixty days preceding his discharge. Those sheets disclose that on fifty-four out of sixty days Tuffs stopped for coffee before his first morning delivery. Blake testified that he reviewed each driver’s trip sheets on a daily basis. Consequently, the company was aware of Tuffs’s repeated violation of the rule, but took no disciplinary action until it could use that violation to discharge Tuffs.
The company’s rule allows drivers to stop for coffee before their first morning delivery if they obtain permission from the dispatcher first, but Advance offered no evidence that Tuffs in fact received permission on those fifty-four other occasions. The company argues to us that it is entitled to the assumption that Blake believed Tuffs called for permission all those other times and on the one occasion he did not, he received a warning notice. The company misses a fundamental precept in the adversarial process. The party who advances a position bears the burden of producing evidence to support that position. 9 Wigmore, Evidence § 2486 (Chadbourn rev. 1981). Advance did not. So the record, as it stands before us, contains sixty trip sheets showing Tuffs took a coffee break fifty-four times before making his first morning delivery. There is nothing in the record to show Tuffs received permission on those fifty-four occasions, and we will not “dabble in factfinding.” NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992).
As to how the company treated other coffee break rule violators, Blake testified that when he reviewed all the drivers’ trip sheets, if he saw repeated violations among several drivers he would call a meeting and remind all the drivers of the rule, or slip them a note in their message box. JD at 22 n. 17. In an attempt to show evenhanded discipline regarding the coffee break rule, the company points to warning, suspension, and termination letters it issued to drivers for a five-year period preceding Tuffs’s termination. For the most part, however, those letters deal with violations other than taking an unauthorized coffee break, such as taking extended coffee breaks. Only one other driver was fired for conduct that included an unauthorized coffee break, and that was in March 1983. The parties stipulated that between 1987 and 1989, other than Tuffs, no other driver received a warning for taking an unauthorized coffee break. Blake himself admitted he never issued a written warning for any other driver for coffee break violations.
All of the facts recited above provide substantial evidence to support the AU’s conclusion that Advance failed to meet its burden to show it would have fired Tuffs regardless of his protected activity. It is clear that Advance was looking for a reason to fire him because of his conduct in opposition to the profit-sharing plan. The company seized upon the discovery of two valid violations of company rules in an attempt to camouflage its selective enforcement of the coffee break rule and use all three violations to support Tuffs’s discharge. In so doing, however, as the AU correctly concluded and the Board agreed, the company violated § 8(a)(1) of the National Labor Relations Act.
B. Donovan Bauldry
Advance hired Bauldry as a replacement driver several weeks after the compulsory profit-sharing plan became effective. As a replacement driver, Bauldry understood that he would work only as needed by the company to fill in for absent regular drivers, and that he could become a regular driver only after the company filled whatever vacancies arose for regular drivers with replacement drivers more senior than he. For this reason, the company argues, “Bauldry’s employment relationship was tenuous from the beginning.” Respondent’s Brief at 33. Yet, the AU found that when Zudycki hired Bauldry, he gave Bauldry the impression that he could work for Advance indefinitely, although not through the slow Christmas season. Indeed, Bauldry drove for Advance steadily until December 14. On December 31, however, he received a letter informing him that Advance was terminating him as a replacement driver.
The company’s dispatch manager, Blake, testified that Bauldry was terminated solely because his job performance had declined. The AU based his conclusion that Advance’s termination of Bauldry was not unlawful on the General Counsel’s failure to rebut that testimony. The Board, however, found “Blake’s conclusional testimony to be too slender a reed to support a Wright Line defense, given other testimony that the judge has credited.” D & 0 at 3. Advance argues to us that by reversing the AU the Board effectively required it to show by clear and convincing evidence, rather than by a preponderance of the evidence, that it would have discharged Baul-dry in any event. The company suggests that the Court’s most recent statement regarding the quantum of evidence an employer must offer in order effectively to meet its Wright Line burden appears in Justice White’s concurrence in Price Wa-terhouse. Justice White wrote “where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof.” Price Waterhouse, 490 U.S. at 261, 109 S.Ct. at 1796 (White, J., concurring).
Assuming Justice White’s statement to be correct, its linchpin is that the employer’s testimony must be credible. The flaw in Advance’s argument is that both the AU and the Board discredited the employer’s testimony. Bauldry testified that in September 1988 Blake called him into the office to warn him about “saying bad things about the company.” JD at 15. In that meeting, Bauldry continued, Blake acknowledged that Bauldry was a good worker who “worked [his] ass off” for the company, even foregoing coffee breaks, and he was in the group of replacement drivers who would next attain regular driver status. Id. In contrast, Blake testified that in that meeting he did not discuss the profit-sharing plan with Bauldry, but instead told him that if he improved his performance, stopped being lazy, he had a good chance to become a permanent driver. Id. at 17. When asked why Bauldry was discharged, Blake responded that Bauldry’s productivity, as reflected in his work records from July through December, was unacceptably low. Id. at 18.
As the Board noted, Blake’s “assertion that Bauldry’s work performance had deteriorated is belied by two aspects of the record.” D & 0 at 3. First, in his findings, the AU stated, “I discredit Blake in some, but not all, of his denials of Baul-dry’s testimony.” JD at 18. The only denial the AU specifically discussed in his findings was Blake’s denial that he threatened that employees opposed to the profit-sharing plan would be discharged. In his analysis and conclusions, however, the AU specifically credited Bauldry’s testimony that Blake told him he was a good worker. By implication, as the Board concluded, the AU discredited Blake’s testimony that he spoke to Bauldry in September about a decline in his work performance. Indeed, the credited testimony was that Blake praised Bauldry’s work performance.
Second, Blake testified that he based his decision to terminate Bauldry on Bauldry’s “work cards,” which he claimed showed a decrease in performance over the period from July to December. The company, however, failed to offer these records in support of its position. As the Board correctly noted, the company’s failure to produce the cards “leads to an inference that the cards would not have buttressed [Ad-vancers position or indeed would have undercut it.” D & 0 at 3. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 174, 94 S.Ct. 414, 420, 38 L.Ed.2d 388 (1973). See also P.R. Mallory Co. v. NLRB, 400 F.2d 956, 959 (7th Cir.1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1191, 22 L.Ed.2d 452 (1969) (“[FJailure to produce evidence, which under the circumstances would be expected, gives rise to a presumption against the party failing to produce it.”).
We conclude, as did the Board, that the AU based his decision regarding Bauldry on an incorrect legal conclusion. Advance failed to show by a preponderance of the evidence that it would have discharged Bauldry regardless of his participation in protected activity. For that reason, the burden never shifted back to the General Counsel. Thus, contrary to the AU’s conclusion, he was not required to rebut the evidence offered by the company. The General Counsel met his Wright Line burden, while the company did not.
For these reasons, the order of the National Labor Relations Board is
Enforced.
. A third employee, Richard Kubat, also filed a complaint alleging the same violations of the Act. After the hearing the Administrative Law Judge concluded that Kubat's termination did not violate the Act. The National Labor Relations Board affirmed the AU’s conclusion.
. The company urges that the evidence supporting the Board’s conclusion that Bauldry’s discharge was unlawful should be viewed as "less than substantial," citing NLRB v. Stor-Rite Metal Products, Inc., 856 F.2d 957, 964 (7th Cir.1988) and Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324, 1328-29 n. 8 (1983) because it is contrary to the ALJ’s conclusion. The language to which the company refers indeed states that when the Board and the ALJ make inconsistent findings of fact and credibility determinations we are to view the Board’s conclusion as less than substantial. Here, however, contrary to Advance's reading of the Board’s Order, the Board implicitly accepted all of the ALJ's credibility determinations, and found "no basis for reversing the [ALJ’s] findings.” NLRB Decision and Order ("D & O”) at 1. Because the ALJ and the Board parted company only on their conclusions of law, Stor-Rite and Stokely-Van Camp do not apply. Therefore, we review the Board’s conclusions of law for substantial evidence. NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992).
. Advance misstated Wright Line’s requirements, as well as Northern Wire’s. It argues that the "General Counsel must make a showing that protected conduct was a substantial motivating factor” in its termination decision. Respondent’s Brief at 18 (emphasis ours). Wright Line, as approved in Transportation Management, requires the General Counsel to show that protected activity was a substantial or a motivating factor. Transportation Management, 462 U.S. at 400 & 401, 103 S.Ct. at 2473-74 & 2474. Omission of the disjunctive "or", we will assume, was a scrivener’s error and not a deliberate attempt to mislead us. Likewise, we assume Advance’s counsel also did not deliberately attempt to mislead when, at oral argument, he stated that, “The Board recognizes that this court has held that
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
|
songer_abusedis
|
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 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".
B. SIEGEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-1557.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 17, 1981.
Decided Jan. 28, 1982.
Timothy K. Carroll, Dykema, Gossett, Spencer, Goodnow, & Trigg, Detroit, Mich., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., James Callear, Bernard Gottfried, Director Region 7, N.L.R.B., Detroit, Mich., for respondent.
Before MERRITT and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PER CURIAM.
The B. Siegel Company petitions for review of a National Labor Relations Board order directing it to bargain with the Retail Store Employees’ Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC. The NLRB cross-petitions for enforcement of its bargaining order and bargaining unit certification. The principal issues before us concern the appropriateness of the bargaining unit certified by the NLRB, and accordingly, whether B. Siegel’s refusal to bargain with its employee certified representative violates sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq.
The company operates seven retail women’s apparel shops in Detroit, Michigan. In June and July of 1979, the union filed three election petitions with the Board, asking for separate elections at the company’s Dear-born, Livernois, and Woodward Avenue stores. The petitions called for three distinct bargaining units, consisting of all full- and part-time employees at each store. The company opposed the petitions, contending that an appropriate bargaining unit must include all seven stores and the company’s central office. After a hearing and a refusal to reconsider, the Board approved the single-store bargaining units and directed three elections. The union won these elections, and the company has refused to bargain with the certified union.
The company now appeals, contending that the Board abused its discretion by certifying three separate bargaining units. The company argues that the Board disregarded facts which compel recognition of a company-wide bargaining unit. First, the company points to the geographic proximity of its stores. All seven stores and the central office are within an eighteen-mile radius. Second, the company’s organizational structure is highly centralized. Management at the central office controls all aspects of merchandising, shipping and receiving, credit and accounting, advertising, data processing, and personnel and employee benefits throughout the network of stores. All supplies are purchased and distributed centrally. Each store must report to the central office daily. Representatives visit each store frequently, often unannounced.
Third, authority over matters of personnel and labor relations rests exclusively with Mr. Levine, the company’s Personnel Director. He controls the number of employees in each store, while the Controller establishes the maximum number of man-hours permitted. Individual store managers have no authority to hire personnel: hiring is the concern of the central office only. Similarly, no store manager has the authority to fire an employee. Although a store manager may suggest initial wage rates, the central office ultimately decides the wage each new employee will receive. All raises or salary adjustments are subject to Mr. Levine’s review and approval. New employees are first trained by Levine’s staff. Finally, the central office establishes all fringe benefits, which apply uniformly to all stores.
Fourth, the company relies on a history of employee transfers from store to store. Company records indicate that 32 current employees have transferred from one store to another at least once. The company frequently transfers employees between stores temporarily, for special sales, holidays, and inventory compilation.
The selection of an appropriate bargaining unit lies largely within the Board’s discretion. Our review is limited to the question whether the Board’s determination was arbitrary or capricious. It is not our responsibility to determine whether the Board certified the best bargaining unit possible. The Union Savings and Trust Co. v. N.L.R.B., 643 F.2d 1249 (6th Cir. 1981); Meijer, Inc. v. N.L.R.B., 564 F.2d 737 (6th Cir. 1977). However, in Wayne Oakland Bank v. N.L.R.B., 462 F.2d 666 (6th Cir. 1972), we recognized that we would not hesitate to disapprove a single store bargaining unit in a retail context if the evidence showed centralized control over the principal aspects of operations and employee relations.
In our view, the evidence supports the NLRB’s findings that the separate stores are sufficiently autonomous to comprise individual bargaining units. The store managers are more closely involved in employees’ daily work than are central office personnel. The manager schedules working hours, and handles schedule complaints. The manager enforces all company rules and policies, and reports infractions. The local manager also evaluates employees and recommends wage increases and promotions. The record convinces us that store managers have discretion to act unilaterally in areas of daily importance to employees.
Reviewing the facts as the Board did, we conclude that substantial evidence supports its findings. The company has no history of collective bargaining, and no other union seeks broader representation. On this basis, we find N.L.R.B. v. Chicago Health & Tennis Clubs, Inc., 567 F.2d 331 (7th Cir. 1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), distinguishable. The Board did not abuse its discretion by concluding that separate stores are appropriate bargaining units.
The company has admitted that it refused to bargain with the union. It therefore violated sections 8(a)(5) and (1) of the Act. We find no merit in the other contentions raised. Accordingly, we grant enforcement of the Board’s order in full.
. The Board’s opinion is found at 250 N.L.R.B. No. 112.
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_casetyp1_1-3-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Gary WELSH, Petitioner-Appellant, v. Larry MIZELL, Warden, Vienna Correctional Center, Vienna, Illinois, and Tyrone C. Fahner, Attorney General of the State of Illinois, Respondents-Appellees.
No. 80-1862.
United States Court of Appeals, Seventh Circuit..
Argued Sept. 18, 1981.
Decided Jan. 12, 1982.
Rehearing and Rehearing En Banc Denied Feb. 10, 1982.
Jerold S. Solovy, Laura A. Kaster, Brigitte Schmidt Bell, Jenner & Block, Chicago, 111., for petitioner-appellant.
Ronald Lee Bell, Asst. Atty. Gen., Tyrone C. Fahner, Atty. Gen., Chicago, 111., for respondents-appellees.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and BAUER, Circuit Judge.
William J. Scott, one of the original defendants, was succeeded by Tyrone C. Fahner. See Rule 25(d) of the Federal Rules of Civil Procedure.
CUMMINGS, Chief Judge.
Gary Welsh is a prisoner at the Illinois Correctional Center in Vienna, Illinois. The murder of which he was convicted was committed in 1962, but Welsh was not competent to stand trial until 1973. At that time he was sentenced in the Circuit Court of McHenry County to a prison term of sixty to one hundred years. His direct appeal was denied, People v. Welsh, 30 Ill.App.3d 887, 333 N.E.2d 572 (2d Dist. 1975). He has served his minimum sentence, with allowance for statutory good time, in several state mental hospitals and in prison. He has been denied parole nine times.
In March 1980 Welsh filed a pro se petition for a writ of habeas corpus. He contended that Illinois’ statutory and regulatory parole criteria had changed significantly between 1962, when he committed his crime, and 1973, when new legislation took effect. In 1962 the emphasis had been on preventing further crimes by the particular candidate for parole (special deterrence). The 1973 criteria reflected instead a philosophy of general deterrence — that a prisoner should not be paroled so long as his incarceration might deter other potential offenders. The application of the new parole criteria to him, Welsh argued, contravened the ex post facto clause of, the United States Constitution.
The district court dismissed Welsh’s petition on the motion of the Attorney General of Illinois. Judge Beatty reasoned that the changes in parole criteria were procedural and that procedural changes do not violate the ex post facto clause when they “operate only in a limited and unsubstantial manner to [the petitioner’s] disadvantage.” May 22, 1980 order, p. 2 (quoting Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216). He assumed that the Parole and Pardon Board (now the Illinois Prisoner Review Board) had always had broad discretion to grant or deny parole and that Welsh therefore could not show how the changed provisions caused him cognizable harm. Id. at 3. This appeal followed. For the reasons set out below, we reverse and remand to the Illinois Prisoner Review Board, with instructions to give prompt consideration to Welsh’s parole application under the statute and regulations applicable in 1962.
The Doctrine of Exhaustion of Remedies Is Inapplicable.
We are met at the threshold by a jurisdictional question. The state has argued, although the point was not pressed on appeal, that Welsh’s petition should be dismissed for failure to exhaust state remedies. There are two reasons for not requiring exhaustion. First, the state has expressly waived it. In urging this Court to deny Welsh’s motion for a stay, the state claimed to have shown by its original motion to dismiss that “although petitioner had not gone to the state courts for relief * * * it would have been futile for him to do so” (emphasis added). Second, even without the state’s waiver, sending Welsh back to the state courts would be an exercise in futility, which federal habeas procedure allows us to pretermit. An Illinois appellate court has recently rejected a challenge identical to Welsh’s, Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist. 1980), and the Illinois Supreme Court denied leave to appeal that decision on January 30, 1981. Thus “there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner,” 28 U.S.C. § 2254(b).
The Ex Post Facto Clause Was Violated.
In its most recent explication of the ex post facto clause, the Supreme Court has said:
The ex post facto prohibition forbids * * * the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.” * * * [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 28, 29, 101 S.Ct. 960, 963, 964, 67 L.Ed.2d 17 (citations and footnotes omitted)
We begin our inquiry therefore by looking at the criteria for parole in effect in September 1962, when Welsh committed the crime for which he was sentenced. They were contained in Sections 6 and 7b of the Parole Law Ill.Rev.Stat.1961, ch. 38 §§ 806, 808a. Cf. Ill.Rev.Stat.1961, ch. 127 § 55b. Section 6 required the sentencing judge and the State’s Attorney to transmit to the Parole Board an official statement of all “facts or circumstances which may tend to throw light on the question as to whether such prisoner * * * is capable again of becoming a law-abiding citizen.” Section 7b required the Parole Board to give “due consideration and weight * * * to the record of the prisoner’s conduct kept by the superintendent or warden.”
The regulations issued by the Parole Board sounded similar themes. For example,
12. If the members of the Parole and Pardon Board in conference determine that a prisoner serving an indeterminate sentence is entitled to parole, they shall enter an order for parole. If they determine that a prisoner is not a fit person to serve his sentence outside the penitentiary, parole shall be denied, and such further order entered as in the judgment of the members is warranted.
»f: sfc sf; s}: s{s !}:
14. In its consideration of the question of whether a prisoner should be paroled, the Parole and Pardon Board shall evaluate all the factors in each case, including the prisoner’s conduct record, and grant or deny release on parole in accordance with its judgment.
Thus the focus of the Parole Board’s inquiry was on the prisoner himself, as observed by the prosecuting and sentencing authorities and by prison officials. The purpose of incarceration had been served— and parole was appropriate — when the individual prisoner was deterred from engaging in further criminal activity and his conduct demonstrated his rehabilitation. The severity of the offense committed and society’s concern with sufficient punishment did not enter directly into the Parole Board’s decision. Those factors had already determined the minimum and maximum prison terms imposed by the sentencing judge. The minimum sentence was intended to satisfy society’s desire for adequate punishment; the maximum sentence was a rough indicator of when rehabilitation could be presumed. The function of parole was to mediate between the two extremes. People v. Moore, 133 Ill.App.2d 827, 829, 272 N.E.2d 270, 271 (5th Dist. 1971); People v. Lillie, 79 Ill. App.2d 174, 178, 223 N.E.2d 716, 718-719 (5th Dist. 1967).
In 1972 the Illinois legislature enacted new parole criteria based on the Model Penal Code. These criteria, which took effect on January 1,1973, provide for the denial of parole if:
(1) there is substantial risk that [the prisoner] will not conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or
(3) his release would have a substantially adverse effect on institutional discipline. Ill.Rev.Stat.1973, ch. 38 § 1003-3-5(c) (Ill.Rev.Stat.1979, id.)
Criteria (1) and (3) invite the Parole Board to look at many of the same factors as under previous law. Criterion (2), however, is a marked departure, importing for the first time into the parole decision considerations of retributive justice (the relationship between time served and the nature of the offense) and general deterrence (incarceration as a means of promoting general respect for law). Furthermore, the statute allows any one of the criteria to serve as a basis for parole denial. Not only is criterion (2) new, therefore, but it can also be determinative. The district court failed to recognize that Welsh’s petition presented exactly that ease: the Parole Board gave only the second of the three factors as its reason for denying parole, and that factor could not have had decisive weight under the Board’s 1962 procedures.
It thus appears that the change in law has worked á substantial harm to Welsh. At the time of his offense, exemplary conduct during his imprisonment might well have resulted in parole. Under the later enactment, no evidence of satisfactory rehabilitation can overcome a finding that the nature of his crime makes him a socially undesirable candidate for parole. This change satisfies both prongs of the Weaver test: it is retrospective and it disadvantages Welsh. It would also satisfy older, more restrictive formulations of the test for an ex post facto violation, which require a direct, after-the-fact enhancement of punishment. Section 1 of the Parole Law in effect at the time Welsh committed his crime stated:
It shall be deemed and taken as part of every sentence, as fully as though written therein, that the Parole and Pardon Board, by and with the approval of the Governor in the nature of a release' or commutation of sentence * * * may terminate the term of such imprisonment * * * earlier than the maximum fixed by the court * * *. Ill.Rev.Stat.1961 ch. 38 § 801 (as amended by H.B.No.343, 1961, Ill.Laws) (emphasis added)
The Supreme Court has also' warned that a “repealer of parole eligibility” may amount to a “greater or more severe punishment than was prescribed by the law at the time of the * * * offense.” Sounding a pragmatic note, Justice Brennan wrote, “[Ojnly an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole.” Warden v. Marrero, 417 U.S. 653, 662-663, 94 S.Ct. 2532, 2537-2538, 41 L.Ed.2d 383 (emphasis in original; citations omitted). Accord, Rodriguez v. United States Parole Commission, 594 F.2d 170, 176 (7th Cir. 1979).
We find considerable support for our holding that the change from special deterrence criteria to general deterrence criteria is substantial and that the retrospective application of the general deterrence criteria violates the ex post facto clause. In Weaver v. Graham, supra, 450 U.S. 24, 101 S.Ct. 960, a Florida statute that changed the computation of “gain time credits” violated the ex post facto clause. In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182, legislation that amended a discretionary fifteen-year sentence to a mandatory fifteen-year term could not be given retrospective effect. In Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (3-judge court), affirmed, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250, legislation that made “good conduct deductions” forfeit if parole conditions were violated could only be constitutionally applied to prisoners whose crimes were committed after the statute was enacted.
In addition, several courts of appeals have held that federal parole criteria, amended in 1976 to include depreciation of the seriousness of the offense, tendency to promote disrespect for the law, and jeopardy to the public welfare, could not be applied to youthful offenders whose crimes were committed before that date. The Youth Corrections Act had, until the 1976 amendments, focused on “a mental and physical examination to ascertain [the youthful offender’s] personal traits, his capabilities, pertinent circumstances of his family life, any previous delinquency or criminal experience, and any mental or physical defect or other factor contributing to his delinquency.” Shepard v. Taylor, 556 F.2d 648, 653 (2d Cir. 1977) (summarizing 18 U.S.C. § 5014). Accord, Marshall v. Garrison, 659 F.2d 440, 444-446 (4th Cir. 1981); De Peralta v. Garrison, 575 F.2d 749 (9th Cir. 1978). While Youth Corrections Act precedents are not automatically transferrable to parole challenges by adult offenders, the changes wrought by the Illinois legislature are of a sufficient magnitude to render these cases apposite. The shift in criteria is, for example, more marked than was true in Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977), where no ex post facto violation was found.
There are decisions in which ex post facto challenges virtually identical to Welsh’s have been made but without success. See, e.g., United States ex rel. McCalvin v. Irving, No. 80 C 1522 (N.D.Ill.1981); United States ex rel. Overall v. Director, No. 74 C 2541 (N.D.Ill.1974), affirmed without opinion, 513 F.2d 634 (7th Cir. 1975); and People v. Harper, 27 Ill.App.3d 406, 327 N.E.2d 91 (5th Dist. 1975) (abstract).
We think the reasoning in these cases is flawed, as Judge Beatty’s was here, by two misconceptions. First, the prisoner does not have to show that he had a vested right to be paroled. That showing would be necessary for a contract clause or due process challenge, but it is not relevant to an ex post facto claim. Weaver v. Graham, supra, 450 U.S. at 29-30, 101 S.Ct. at 964-965, is now dispositive on that point. Second, it is not an answer to an ex post facto challenge to say that parole is a matter of “legislative grace.” As Judge Aldrich noted in Greenfield v. Scafati, supra, 277 F.Supp. 644, 646:
It is true that parole is commonly spoken of as a matter of grace, and not of right. * * * It would be more accurate, however, to say that a prisoner’s entitlement to parole lies in the discretion of the parole board. It would not. follow because a prisoner might not receive parole that it would not be an unlawful ex post facto burden to deprive him altogether of the right to be found qualified.
Even discretionary decisions are made under some constraints. We hold only that the constraints on the Parole Board’s discretion in Welsh’s case must be those contained in the statute and regulations that were in effect in 1962, not those subsequently enacted.
Remand to the Illinois Prisoner Review Board Is the Appropriate Remedy.
Welsh has argued that we should either order his immediate release, since the only ground for the most recent denial of his parole was constitutionally inapplicable, or remand his case to the Prisoner Review Board for reconsideration under the relevant guidelines. A remand is clearly the appropriate relief. See Weaver v. Graham, supra, 450 U.S. at 36-37, 101 S.Ct. at 968-969, and People ex rel. Jones v. Brantley, 45 Ill.2d 335, 337, 259 N.E.2d 33, 34 (1970). If the Board denies parole yet again, it must— as the state acknowledges (Br. 6) — give its reasons in order to satisfy the due process requirements of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 15, 16, 99 S.Ct. 2100, 2107-2108, 60 L.Ed.2d 668.
Reversed and remanded for further proceedings consistent herewith.
. “No State shall * * * pass any * * * ex post facto Law.” U.S.Const., Art. I, § 10, cl. 1. A similar clause applies to the federal government. Art. I, § 9, cl. 3. The Illinois Constitution contains a like provision in Art. 1, § 16.
. January 30, 1981, response to Petitioner-Appellant’s Motion for Stay.
. This shift is illustrated by the comments of Theodore P. Fields, chairman of the Parole and Pardon Board from January 1971 to August 1972, in 62 Ill.B.J. 20, 22 (1973):
The second statutory ground for denial breaks down into two categories of principles that exist in our system of criminal justice: “His release at that time would deprecate the seriousness of his offense” means simply, under our present standards, has the man who committed a certain crime served a reasonable enough time considering the nature of the crime. * * * The second category is that “his release at that time would ... promote disrespect for the law.” This relates to the principle of deterrence. If an offender is released at too early a date as compared with the nature of the crime committed, others would feel there is no reason they should worry about committing such crimes because there wouldn’t be much of a penalty to be suffered. * * * Also, for a viable system of criminal justice, it is necessary for the public to have confidence in and respect for the law. * * * The length of time served for particular offenses is currently one of the elements that does have an overall effect on the public in its respect for the law.
. Exhibit 1 to petition for writ of habeas corpus.
. In Ruip, the prisoner was challenging the 1973 federal parole guidelines. Under those guidelines the United States Parole Commission identified nine personal characteristics and six categories of offense severity. It assigned the prisoner scores for each characteristic and a rating for offense severity, and granted or denied parole based on both factors.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer:
|
songer_appsubst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
James P. MITCHELL, Secretary of Labor, United States Department of Labor, Appellant, v. Claude H. TURNER and Citizens and Southern Bank, Trustee, Appellees.
No. 18271.
United States Court of Appeals Fifth Circuit.
Dec. 27, 1960.
Jacob I. Karro, Atty., Dept, of Labor, Bessie Margolin, Asst. Sol., Dept, of Labor, Washington, D. C., Harold C. Nystrom, Acting Sol. of Labor, United States Department of Labor, Washington, D. C., Beverley R. Worrell, Regional Attorney, Birmingham, Ala., for appellant.
Stanley Meyerson, Atlanta, Ga., Johnson, Hatcher, Meyerson & Irvin, Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.
RIVES, Circuit Judge.
This appeal is from a decision in two consolidated actions brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, [29 U.S. C.A. § 216(c)], to recover unpaid minimum wages and overtime compensation alleged to be owed by appellees to their employees.
The issue on appeal is whether the appellees could legally exclude from the work day, for purposes of wage computation, two 15-minute periods — one each morning and one each afternoon, during which operations in the plant were suspended. The court below granted summary judgment for appellees, principally on the ground that “during said rest periods [the employees] did in fact rest and also engaged in activities of their own without restriction by the employer, and further that during such periods they did not render any services or perform any work for the defendants.”
It has long been settled that an employee’s work time under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. is not limited solely to the time he is actively engaged in the performance of work. The test to be applied is whether the “idle time” is “predominantly for the employer’s benefit or for the employee’s * * *.” The court below found there was no genuine issue of fact, and that the 15-minute breaks were predominantly for the benefit of the employees.
The facts, taken in the light most favorable to appellant, are as follows: Appellees manufacture small outboard motor boats. The work done by the employees involved here was monotonous, repetitious, tedious and tiring. The plant was not air-conditioned and, being of corrugated metal, became very hot in summer. The air in the upholstery department was not good and contained considerable dust. Paint fumes in the paint spraying room were very strong and the exhaust fans inadequate. Smoking was prohibited anywhere in the plant. The company tried to confine employee trips to the restroom or drinking fountain to rest periods.
After the breaks, the men testified that they returned to work with renewed energy and made fewer mistakes. In addition, there was expert evidence that a rest period of 15 minutes restored workers to 90% of their pre-fatigue level. The expert also indicated that generally the introduction of rest periods leads to an appreciable increase in total output and tends to decrease absenteeism, turnover of personnel, and the taking of unauthorized random rests. In the absence of such rest periods, worker efficiency declines at an accelerated rate.
During the breaks, the employees left the plant and congregated on an adjoining field and dead end street. Here, they conversed, played checkers and poker, shot craps, purchased refreshments from a mobile wagon, listened to a preacher, and “scuffled.” One employee shot rats in the field adjoining the plant. The great majority of employees lived more than 50 miles from the plant and thus could not go home during the 15-minute breaks.
At the end of the break, a horn sounded and the employees were required to be at their posts when it ceased blowing.
The work breaks were initiated by the employer and were mandatory on the employees. The employees would have preferred “doing away with the breaks altogether” and getting off one-half hour earlier.
In addition to this picture of the facts, the Secretary comes armed with a well-established administrative interpretation of the Fair Labor Standards Act which provides that employees must be compensated for work breaks of less than 20 minutes duration. This interpretation is entitled to great, though not conclusive, weight.
In view of the facts as stated above, and after giving due consideration to the long-standing administrative ruling, we are of the opinion that the court below erred in 'ruling,' as a matter of law, that the evidence established that the employees were the predominant beneficiaries of the work breaks.
We could stop here, but for the Secretary’s insistence not only that this case be reversed, but that the court below be directed to enter summary judgment in his favor. Appellees protest because the Secretary filed no motion for summary judgment in the court below.
It is not necessary for us to align ourselves with the majority or with the minority of the courts which have passed on the question of whether such a counter or cross-motion is necessary. For, when the facts are viewed in the light most favorable to the appellees, the Secretary was not entitled to summary judgment. There was some evidence that the idea of free periods originated with the employees themselves who asked for a free period during the' morning and afternoon ; that the free periods lasted longer than 15 minutes in most cases; that the employees welcomed a break in the morning when they were hungry and could get something to eat; that the work was not “monotonous or exacting”; that working conditions in the plant were “very pleasant”; and that over-all production suffered as a result of the cessation of plant activities during the 15-minute breaks. On this state of facts, and again giving due weight to the administrative interpretation of the Act, we cannot say that no genuine issue was presented as to whether the 15-minute breaks were predominantly for the benefit of the employer. The entry of summary judgment for either party would have been erroneous, and the cause must be remanded to the district court for further proceedings.
To guide the court below in reaching a proper determination of the issue before it, we note that the fact that the employees made no claim to be paid for the extra time until the administrative authorities arrived on the scene is not a binding waiver. Nor is any understanding between employer and employees that the rest periods were to be non compensable a legal contract. For the obligation of the employer to meet the minimum working conditions prescribed in the Act is statutory and a matter of general public policy, and cannot be waived or contracted away by individual employers and employees.
Reversed and remanded.
. Armour & Company v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.
. Armour & Company v. Wantock, 1944, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118.
. See authorities collected in 6 Moore, Federal Practice, 2d ed., Par. 56.15 [1],
. Interpretive Bulletin No. 13, originally-issued in 1939, and revised in 1940; see evolution of this interpretation summarized in Mitchell v. Greinetz, 10 Cir., 1956, 235 F.2d 621, 624-625, 61 A.L.R.2d 956.
. See Skidmore v. Swift & Co., 1944, 323, U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124
. See 6 Moore, Federal Practice, 2d ed., Par. 56.12, at p. 2088 (1953).
. Cf., Brooklyn Sav. Bank v. O’Neil, 1945, 324 U.S. 697, 707, 65 S.Ct. 895, 89 L.Ed. 1296; Wood v. Meier, 5 Cir., 1955, 218 F.2d 419, 420.
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL SHOE CORPORATION OF PUERTO RICO, Respondent.
No. 6599.
United States Court of Appeals First Circuit.
Heard Feb. 9, 1966.
Decided March 8, 1966.
Warren M. Davison, Attorney, Washington, D. C., with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Clarice R. Feldman, Attorney, Washington, D. C., were on brief, for petitioner.
George L. Weasler, Santurce, P. R., for respondent.
Before ALDRICH, Chief Judge, and MARIS and COFFIN, Circuit Judges.
By designation.
PER CURIAM.
The National Labor Relations Board has petitioned this court to enforce its order directing International Shoe Corporation of Puerto Rico to bargain in good faith with Sindicato Obrero Insular, the union which on June 28, 1963 was certified after an election as the collective bargaining agent of the Corporation’s production and maintenance employees at its Manatí plants. The Corporation engaged in collective bargaining with the union for a period of about ten months after that date, but on June 24, 1964 declined to negotiate further with the union on the stated ground that it had filed the charges with the Board which later became the basis for the order here sought to be enforced.
The Corporation asserts a number of defenses against the enforcement of the order, all of which we have carefully considered and find to be without merit. It is sufficient to say that it is settled law that, absent unusual circumstances which we do not find present here, an employer is required to bargain with the certified representative of its employees for the full period of one year after certification, if that much time is necessary to reach agreement. And this is required even though the union loses its majority during the year through no fault of the employer. Brooks v. N. L. R. B., 1954, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125; N. L. R. B. v. United States Sonics Corporation, 1 Cir. 1963, 312 F.2d 610. Moreover the filing by the union of a charge of unfair labor practices does not relieve the employer of his duty to bargain collectively. N. L. R. B. v. Harris, 5 Cir. 1953, 200 F.2d 656; N. L. R. B. v. Taormina Co., 5 Cir. 1953, 207 F.2d 251; N. L. R. B. v. Kit Manufacturing Company, 9 Cir. 1964, 335 F.2d 166, 167, cert. den. 380 U.S. 910, 85 S.Ct. 894, 13 L.Ed.2d 797.
A decree enforcing the order of the Board will be entered.
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_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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A-1 EXCELSIOR VAN & STORAGE COMPANY, Inc., Respondent.
No. 19210.
United States Court of Appeals Eighth Circuit.
Dec. 3, 1968.
Leonard M. Wagman, Atty., N. L. B. B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allen J. Berk, Atty., N. L. R. B., on the brief.
Stanley V. Shanedling, of Shanedling, Phillips, Gross & Aaron, Minneapolis, Minn., for respondent.
Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.
MATTHES, Circuit Judge.
The National Labor Relations Board has petitioned this Court, pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order issued against A-1 Excelsior Van & Storage Company, Inc. (Respondent) reported at 165 N.L.R.B. No. 45.
The salient facts are incorporated in the trial examiner’s decision and need not be reiterated in detail here. Respondent, a Minnesota corporation, incorporated January 1, 1966, was at all pertinent times engaged in long distance and local moving. The complaint, issued on August 31, 1966, was based upon a charge filed by Local 544, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). The complaint alleged that Respondent violated § 8(a) (1), (3) and (5) of the Act, as amended. In general, the complaint charged that Respondent had improperly interrogated employees, had threatened to subcontract the employee’s work because of their affiliation with Union; had reduced the employees’ hours of work and subsequently discharged them because of their Union adherence, and had failed to bargain with the Union.
After a full hearing in October, 1966, the trial examiner in his decision concluded that Respondent had not engaged in the alleged unfair labor practices. The examiner recommended that the Board enter an order dismissing the complaint in its entirety. The Board rejected the examiner’s recommendation and found that Respondent had engaged in conduct violative of § 8(a) (1), (3) and (5) of the Act. It entered a cease and desist order and affirmatively directed Respondent to reopen its local warehouse and moving department and offer to reinstate and make whole the three employees who had been affected by Respondent’s discontinuance of its local moving. Respondent was also directed to bargain with the Union.
Once again, the question for determination is whether the Board’s findings are supported by substantial evidence on the whole record. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In Universal Camera, the Supreme Court stated, inter alia, that Congress has imposed upon reviewing courts the responsibility for assuring that the Board keeps within reasonable grounds; that although the Board’s findings are entitled to respect, they nevertheless must be set aside when the record clearly precludes the Board’s decision from being justified by a fair estimate of the testimony of witnesses or its informed judgment on matters within its special competence or both. The Court also made it clear that an examiner’s report is as much a part of the record as the complaint or the testimony.
“It is therefore difficult to escape the conclusion that the plain language of the statutes directs a reviewing court to determine the substantiality of evidence on the record including the examiner’s report.” Id. at 493, 71 S.Ct. at 467.
******
“We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. * * We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony.” Id. at 496, 71 S.Ct. at 469.
The probative force that should be given an examiner’s decision reaches its highest significance when, as here, the issues involved turn upon credibility. Acme Products, Inc. v. N. L. R. B., 389 F.2d 104, 106 (8th Cir. 1968), and cases, there cited; Saginaw Furniture Shops, Inc. v. N. L. R. B., 343 F.2d 515 (7th Cir. 1965); Rocky Mountain Natural Gas Co. v. N. L. R. B., 326 F.2d 949 (10th Cir. 1964).
The crucial question for resolution by the Board was whether Respondent’s decision to subcontract its local hauling and terminate three employees was motivated solely by valid economic considerations, as found by the trial examiner, or by Union animus as found by the Board. Briefly, the evidence relevant to this question reveals the following. Respondent was a small, privately owned corporation. Although no stock was issued, it was shown and the examiner found that William Don Larson, Fred Proctor and Harlan Johnson were equally interested in the trucking operation. Employees Bernard H. Becker and David C. Ellwanger were employed in February, 1966. Harry Jenkins was hired in April. They were to work on local moving and in the warehouse.
These employees became dissatisfied with low wages, long hours and lack of pay for holidays. During the middle of May, 1966, Becker informed Proctor that unless the employees received a salary increase they would go to the Union. According to Becker’s testimony, Proctor requested him not to take that course of action, stating that: “ [Y] ou know we would rather close our doors than have the Union in there.” The examiner observed that the statement attributed to Proctor in middle May “appears to be beyond the averments of the complaint and is in any event an isolated remark not warranting a finding of violation and insufficient for a remedial order * On June 3 Becker, Jenkins and Ellwanger contacted Union and signed cards authorizing it to represent them for bargaining purposes. On June 6 they paid initiation fees to the Union. The afternoon of that day the Union sent a letter to Respondent demanding recognition. Photostatic copies of the three authorization cards were enclosed with the letter.
On the evening of June 7, Proctor met with employees Becker and Jenkins at a local restaurant. During that meeting Proctor informed Becker and Jenkins that Respondent was losing money on the local moving operation and that it was going to discontinue that phase of its business. On that occasion Becker stated Proctor knew that Excelsior had received notice from the Union. Becker recalled that Proctor did not reply to this suggestion. Jenkins offered a different version. According to Jenkins' equivocal testimony, Becker informed Proctor the men were going to the Union, that Proctor replied he knew about it. The examiner discredited Jenkins’ testimony stating:
“Jenkins was led by General Counsel during most of his testimony, including that pertaining to this incident. Moreover, Jenkins’ version of Proctor’s remarks on June 7 does not appear responsive to the occasion but seems instead to corroborate Becker’s account of the mid-May breakfast conversation. Accordingly, I do not find that on June 7 Proctor acknowledged that Excelsior had by then received the Union’s demand for recognition.”
Additionally, the uncontradicted testimony of Johnson shows that the Union’s demand for recognition (mailed June 6) was not received until June 8 or June 9, and not opened by Larson, the addressee, until June 10.
The record also reveals and the examiner found that Johnson and Larson credibly testified that early in May they had received their auditor’s profit and loss statement covering the four-month period of January through April. This statement showed that Respondent’s local operation was a losing financial venture; that 75 per cent of each dollar derived from local moving was being paid out for labor as against an industry expectation of 45 per cent. Although the auditor’s report was not introduced into evidence the examiner credited the unrebutted testimony of Larson and Johson relating to the local operations.
The examiner concluded that the § 8 (a) (1), (3) and (5) violations turned, on whether the contracting out of the local hauling work was impelled by the employees’ Union adherence and Union’s demand for recognition. The examiner stated:
“To find that Excelsior was so motivated I must discredit the uncontradicted evidence that Respondent was faced with a losing operation in its local hauling business. In addition, to reach this result I must discredit the equally unrebutted evidence that the arrangement for Warren Austin to take over the unit work was settled on May 30, days before the employees first contacted the Union. In this connection I note that General Counsel had during his investigation of this case taken an affidavit from Austin but failed to call Austin to testify to rebut Respondent’s recital of the circumstances of the contract to subcontract.”
Further discussion of the examiner’s findings is not required. In our view he carefully and logically analyzed all aspects of the evidence. His decision succinctly demontrates that resolution of the overall question depended in large measure upon the weight and value to be given the testimony of witnesses. He concluded that the General Counsel had failed to sustain the burden of proving the alleged unfair labor practices.
We have accorded due consideration to the Board’s decision. We, of course, are mindful that it is our function to review the Board’s findings and determine whether on the record as a whole its findings, and not those of the trial examiner, are supported by substantial evidence. Obviously, the Board indulged in every favorable inference necessary to sustain its decision and order. Certainly it is within the competence of the Board to draw reasonable inferences. But a fair estimate of the record leaves us with the firm impression that the Board completely failed to accord any consideration to undisputed evidence favorable to Respondent. As an example, the examiner, with propriety, credited the' unrebutted testimony of Johnson and Larson that was directed to the crucial question of whether Respondent discontinued its local operation solely for economical reasons. The Board was “not persuaded by Respondent’s self-serving testimony as to the contents of the auditor’s report.” On the other hand, the Board attached significance to the self-serving testimony of employee Becker that Respondent had advertised in Minnesota newspapers for employees. We recognize, of course, that the auditor’s report was the best evidence but so were the newspaper ads. Neither was introduced. In any event, the examiner saw fit to believe Johnson and Larson, who testified without objection to the pertinent portions of the auditor’s report. This demonstrates that the Board accorded slight, if any, regard for the examiner’s findings based upon his evaluation of the witnesses and the weight given their testimony.
After responsibly considering the record in its entirety we are satisfied that the Board’s findings are not supported by substantial evidence.
Enforcement of the Board’s order is denied.
. Proctor liad severed all connections with Respondent prior to the hearing before the examiner. He was not present at the hearing and counsel for Respondent informed the examiner that he had made an unsuccessful effort to locate Proctor.
. The examiner, in discussing the question whether the contracting out of the local hauling was impelled by the employee’s Union adherence or was motivated by economic considerations stated that in order to find for the General Counsel on this issue ho would be required to pile inference on inference. More precisely, the examiner stated:
“First it would be necessary to infer that Excelsior received the Union’s demand for recognition on June 7. While the Union’s office girl credibly testified she had placed the envelope with the demand in the mail at about 2 p.m. on Juno 0, no evidence was offered as to when, in the normal course of events, the Union’s letter would have been received by the Respondent in Excelsior, Minnesota. It would then be necessary to infer, based on an inference that the letter was received on June 7, that Ex-. celsior then contacted Warren Austin and made the agreement to subcontract to him the unit’s work, all in time to announce this to the employees that very evening and to implement the arrangement the following day. Having found nothing in the record or the demeanor of the witnesses to discredit the unrebutted evidence that the decision to subcontract the local hauling work and terminate the employees was motivated solely by valid economic considerations and undertaken prior to the advent of the Union, I shall recommend dismissal of the allegations that Excelsior violated Section 8(a) (3) and (5) of the Act.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_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
GUARDIAN TRUST CO. v. STICKLE.
No. 6133.
Circuit Court of Appeals, Sixth Circuit.
Feb. 17, 1933.
. F. K. Pickering, of Cleveland, Ohio, for appellant.
E. E. Stearns, of Cleveland, Ohio, for appellee.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
HICKENLOOPER, Circuit Judge. .
On October 7,1930-, the Alliance First National Bank placed an. order with the Cleveland office of Prince & Whitely, stockbrokers, to sell 20 shares of Congoleum-Naim, Inc., common stock, and 25 sharers of Boi’den Company capital stock, at designated prices. The order was executed the same day, and settlement was made by the brokers on October 8th by the delivery of an equal number of like shares of their own and receipt of the purchase price. The bank was advised promptly of the execution of the order, and thereupoir' drew a sight draft upon -Prince & Whitely for the avails of the sale, attached certificates representing the shares sold, and forwarded the draft to the appellant for collection and deposit." ''
. ¡ Upon presentation of the draft, appellant received a check drawn to its order upon the' Equitable Trust Company of New York, and delivered the attached certificates. This was between 9:30 and 10 a. m. on October 9,1930. Later, on the same day, an involuntary petition in bankruptcy was filed against Prince & Whitely. There were sufficient funds in the Equitable Trust Company to pay the check when it was delivered, but the filing of the bankruptcy petition necessarily resulted in payment being refused when the check was cleared in the due course of business. The appellant thereupon filed a petition for reclamation of the stock, which petition was denied. The present appeal-followed.
We are of the opinion that the order of the District Court should be affirmed. Compare In re A. O. Brown & Co., 189 F. 432 (D. C. N. Y.). The facts of the case at bar do not disclose a sale “for cash.” Upon execution of the bank’s order, the bank became obligated tot deliver certificates for shares of stock to the amounts and of the kinds sold. It was in the performance of this obligation that the Alliance First National Bank forwarded the certificates in question, adopting a common business expedient or means for making such delivery and collecting the proceeds of the sale, the latter to be deposited in its banking account with appellant. Whether appellant exceeded its authority as agent in delivering the certificates, except upon the receipt of cash, we need not determine. The receipt of a cheek was in a true sense the extension of credit to Prince & Whitely by appellant, upon its cm responsibility, and could give rise to no equities, attaching to the stock, in the absence of that which, in fact or in law, amounted to fraud ab initio. No' such facts exist in the present case.
Affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SCHMITT v. CONTINENTAL-DIAMOND FIBRE CO.
No. 7300.
Circuit Court of Appeals, Seventh Circuit
Dec. 13, 1940.
Rehearing Denied Jan. 13, 1941.
Geo. T. Roge'rs, L. Dow Nichol, Jr., and George B. Rogers, all of Chicago, 111., for appellant.
John F. Rosen, of Chicago, 111., for appellee.
Before SPARKS, MAJOR, and KER-NER, Circuit Judges.
SPARKS, Circuit Judge.
This is an appeal from a judgment in an action to recover damages for breach of a sales agency contract. Jury was waived, and the court entered judgment for the defendant.
The question presented is whether appellant is entitled to damages for loss of profits alleged to have resulted from the illegal termination of his contract.
Appellant sued upon a contract entered into between the parties as of April 1, 1929, although it was not actually signed until about June 10, 1929. According to its provisions, appellant was given an exclusive agency for the sale of appellee’s products in a district including the State of Ohio, parts of Michigan, West Virginia, New York, Pennsylvania, Virginia, and Kentucky, as well as parts of Ontario, Canada. The contract provided for a commission of 8% on certain products and 5% on others, the rate depending upon the type of product sold. The products consisted of fibre and bakelite articles. The term of the contract was fixed by the following paragraphs:
“It-is mutually agreed by both parties of this contract that it is to cover the period from April 1st, 1929 to December 31st, 1933 and that it is to continue thereafter from year to year, unless either gives notice in writing at least thirty days prior to the December 31st its termination is desired.
“Upon giving such notice of termination, this contract shall become null and void upon the next date of expiration, which in that case will be on the December 31st following the giving of notice, and both parties agree that notice of termination implies and carries with it a complete release from all the conditions of the contract.”
The contract itself made no reference to the payment of expenses of the sales district, although that matter was covered in a letter written by the president of the company shortly before appellant took over the district, as follows: “Under our regular selling terms to Sales Managers covering certain definite districts, all the expense of selling is assumed by the Sales Manager, and his compensation from the Company is in the form of a commission at the rate of 8%, figured on the.net sales.”
January 18, 1930, appellant was requested to and did sign a supplemental instrument which provided that the 1929 agreement might be terminated at any time upon thirty days notice prior ‘to the termination of any contract year, said notice to be given in writing, addressed to the appellant, for any of the following causes:
“(a) In the event that party of the second part shall at any time while the agreement is in force fail to devote his entire time, skill and attention to the business of the party of the first part; or that without the consent of the party of the first part he shall undertake to sell or sell materials manufactured by any person or corporation other than the party of the first part; or that without the consent of the party of the first part he shall undertake to sell any materials of the party of the first part in any territory other than specified in his Agreement; or that in the event that in the opinion of the Board of Directors of the party of the first part he shall at any time for a reasonable period fail to produce sales of the product of the party of the first part which shall be satisfactory under the conditions in the industry then existing.
“(b) In the event that the existence of the said Agreement shall prove to be of such a nature as to prevent or delay negotiations which may during the term of said Agreement be instituted for a sale, merger, consolidation or other change in the corporate structure of the party of the first part, or of the identity of the interests controlling the same.”
The supplement also provided that in the event of the cancellation and termination of the original agreement in accordance with any of the foregoing conditions, the party of the first part agreed to indemnify the party of the second part for any loss or damage to which he might be put by reason of liabilities upon leases of office space or warehouse accommodations, clerical bills, telephone and similar office charges or any other obligations he had assumed as an incident to the contract and which had been approved by the Board of Directors either at or prior to such termination. The contract was further modified in December, 1931, by a substantial increase in the rate of commissions payable under it.
Appellant entered upon performance of the contract in April, 1929, establishing headquarters first at Cincinnati and later at Cleveland. Until 1931, he maintained offices in a factory, the operation of which he supervised until its dismantlement in that year. Offices were also maintained in several other cities in the territory. Appellant paid all rentals of the various offices, salaries of office help, salesmen, entertainment and other expenses incurred in the operation of the sales organization. During the year 1929, he made a profit of almost $30,000 on his business. The year 1930 was less profitable, ,with net earnings of only a little over $12,000. By the year 1931, expenses had mounted, and sales declined, so that the net result for the year was a loss of over $5,000. The same condition prevailed in 1932, and the expenses for the first four months of that year amounted to over $16,000, as against commissions for the first five months of approximately the same amount.
In March, 1931, negotiations appear to have been entered into preliminary to a revision of the commission rates necessitated by the fact that appellant was then operating at a loss. At that time he wrote the treasurer of the company relative to the assembling of data, stating: “Under the present plan, coupled with adverse business conditions, I am regularly showing a loss to myself personally and I know that you want to correct this sort of a situation. * * * on April 1st I am adding two more men which is going to make the burden still heavier for me until I can get them on a self-supporting basis. On about March 16th, I will be moved into our new' headquarters * * * which will be a considerable improvement over our present offices but, of course, at no financial saving. * * * I am going to put on as many men as are needed to get our share of all the sales in this district but it takes money to keep them going.” In December 1931, the new schedule with a graduated scale of commission rates was put into effect, which, according to appellant’s testimony, “worked out as an increase. * * * That was a protection for, low business. At times when the volume was high the rate was about the same as it was under the flat 8% arrangement.” Meantime, appellee had been advancing funds over and above appellant’s commissions for the payment of expenses during the latter half of 1931 and the first four months of 1932. These advances amounted to over $20,000 by May, 1932, the last, of $2,500 being made May 2, 1932, five months after the new schedule of commission rates went into effect. The record shows that similar advances were made to other district sales managers occupying positions similar to that of appellant.
On May 23, 1932, while appellant was attending a sales convention in Chicago, he was handed the following letter:
“By authority of the Board of Directors, I beg to advise you of the termination of our sales contract dated April 1, 1929, and supplementary amendment thereto dated February 18, 1930, in accordance with the terms and provisions of the contract.
“This termination becomes effective as provided in the contract December 31, 1932. However, it is our intention ‘to take immediate physical charge of the direction of sales in the district covered by the agreement at once, and you will be credited with compensation as provided by the contract until the termination thereof, such commissions to be credited against our advances to you until such a time as that has been disposed of.
“We will appreciate your immediate acceptance, and we are taking steps to authorize a representative to take over the office immediately upon hearing from you. We will at that time advise you the name of the party to whom you shall turn over the records, etc.
“Very truly yours,
“Continental-Diamond Fibre Company
“(Signed) N. N. Wright Sales Manager”
Upon appellant’s return to Cleveland, appellee sent other employees to take possession of the office which appellant surrendered, voluntarily, according to testimony offered in behalf of appellee, and under threat of replevin, according to appellant’s own testimony. There is considerable dispute in the evidence as to the circumstances surrounding the surrender of the offices. Appellant testified that when the letter of discharge was handed to him, the General Manager of appellee stated that they would send him his commissions to the end of the contract, and that the gross commissions would be net commissions so that financially ‘ he would not be so very badly off. He also testified that he talked to the treasurer of the company soon after his return from Chicago, and that when he objected to turning over the keys of the offices the treasurer said: “I can assure you, as an officer of the company, that surrendering your keys is not going to affect your legal status in any way, and while we have always been good friends and I hope we will remain that way, you know that if you refuse to. give me'the keys I would simply have to go over to the court house and get a replevin action and then I would have them.”
Each officer denied the testimony as to himself. The Genera] Manager testified that when he gave appellant the letter the latter stated that he had no particular objection to leaving the company if that was what the company wished; that he had various interests which, in the aggregate, had paid him a very satisfactory income and that his relationship with Continental in building up the Cleveland territory had been a losing proposition; that if the company wanted to release him and wanted to take possession of the Cleveland office that could be arranged. The treasurer said that while appellant did say he wished to discuss the situation regarding his surrender of the keys and possession of the office, and suggested that the company pay him a sum of money for completing the settlement of the contract arrangement to the end of 1932, he replied that he was without authority to negotiate a settlement, and such discussion would have to be taken up with the president of the company. He flatly denied saying to appellant in substance: “You have my assurance, as Treasurer of the Company, that you are entirely safe in turning' this over, and that whatever rights you have, will be properly safeguarded by the Company. I don’t like to see it, but if you would refuse to turn this over I would have to get a writ of replevin and take it over, and I hope you will not force me to do 'that.”
After the surrender of the offices by appellant, he consulted with the president of the company with a view to settling for a lump sum. That officer testified that he refused to make any such agreement, stating that they would continue to the end of the year with regard to his compensation, if any was due him. Appellant subsequently returned to Chicago and started up a new business, organizing the American Phenolic Corporation which dealt in molded bakelite sockets.
After the termination of the contract there was an exchange of letters with regard to the matter of compensation. The treasurer wrote in July, 1932, “* * * we will continue for the balance of the year to credit your account with commission on shipments made during the balance of this year to the territory previously handled by you. From the amount of the commissions so credited will be deducted the expenses covering salaries and all other operating expenses for sales made in this territory during the period until December 31. * * * As at the close of this year, December 31, 1932, the account will be stated setting forth the amount which you may owe the Company or the amount by which the Company may be indebted to you at that time under the terms of your contract. * * *” in reply, appellant wrote that the arrangement outlined was neither satisfactory nor in accordance with the understanding between the several members of the company and himself. He referred to the fact that the letter of May 23, 1932, terminating the sales contract, made no mention of debiting him with the expenses of his district except as to expense already incurred by him, and that when the general manager handed him that letter they discussed the matter and agreed that gross commissions would be net commissions except for the existing indebtedness. He protested the deductions of salaries and operating expenses then being paid in the district which had not been incurred or approved by him.
In February following, a new series of letters was exchanged between appellant and the treasurer, beginning with a request from appellant dated February 2, 1933, for a statement as to the report of the company to the Gbvernment in connection with his income tax return for the year 1932. In reply the treasurer wrote that they had reported the amount of $10,576 income, comprising commissions of $40,663, less expenses paid of $30,087. In reply, appellant asked in substance for a breaking down of these figures, stating that in past years the Collector had always asked for particulars as to items of salary, railway and traveling, office and clerical, hotel and entertainment and miscellaneous. The tone of each of the letters is very friendly, and there is no indication in any of a disagreement over the accounting between them. There is nothing in the letters to indicate that appellant did not expect to be charged with expenses, and there seems to be no reason for the incurring of expense other than the operation of the sales office.
The court found from the evidence that the contract consisted of the instrument of April 1, 1929, supplemented by the instrument of January 18, 1930, and further supplemented by the letter of December 14, 1931; that under its provisions, appellant was to have the exclusive agency for the Cleveland District, it being understood that he was to pay all expenses incident to the operation of the office for that district; that the parties acted under that contract until May 23, 1932, when there was delivered to appellant a letter notifying him of the termination of the contract, thereby validly terminating the contract as of December 31, 1932; that since the contract was validly terminated, appellant was not entitled to recover by way of damages or otherwise, any sum for or on account of such termination; that appellant did not suffer or sustain any damage by reason of the termination of the contract or by reason of any fault or default on the part of appellee; that appellee acted in good faith in terminating the contract; that on or about May 23, 1932, appellee assumed the operations of the Cleveland District, “it being the expressed intention of plaintiff and defendant that commissions, as provided in the contract, would be credited to plaintiff from May 23, 1932, to December 31, 1932; that the expenses of operating and the making of sales in the said ‘Cleveland District’ would be charged to plaintiff for said period; that if the commissions exceeded the expenses for said period, plaintiff would be credited with such excess, and if the expenses exceeded the commissions for said period, plaintiff would be charged and debited for the difference”; that no agreement was made on May 23, 1932, or at any other time between the parties that appellant was to receive commissions on sales made in the Cleveland District from and after May 23, 1932, without being charged and debited with the expenses of its operation; .that appellant had been duly credited with the commissions for the period from May 23, to December 31, 1932, and appellee had charged appellant with the expenses of operation for the same period, and that such expenses exceeded the amount of commissions for the period; and that appellant had not proved his case in that the evidence did not show that his contract of employment was wrongfully breached or terminated by appellee and did not show that appellee was guilty of any breach of duty owing to appellant or that the latter was damaged by reason of any fault of appellee. The court therefore entered judgment for the defendant.
Many of the issues presented to us in the case at bar appear to have been presented to the Municipal Court of Chicago by a suit filed by the company against appellant here to recover from him the excess of advances to May 23, 1932, and expenses of operation of the office from then until December, 1932, over commissions earned between May and December, 1932. Certain pleadings in that suit were introduced as an exhibit by appellee, and were admitted by the court solely for the purpose of showing an alleged inconsistency between appellant’s pleadings in the two suits. The record does not show what disposition, if any, has been made of that litigation.
The principal controversy between the parties arises over two questions, first, as to the validity of the supplemental contract of January 18, 1930, which appellant contends was without consideration, hence gave appellee no right to discharge him until the expiration of the term of the original contract; and second, as to the right of appellee to take over the business, charging appellant with all the expenses of its operation from May 23, to December 31, 1932. Appellant also contends that, regardless of the validity of the modification of January, 1930, no ground existed for his discharge in May, 1932, since he had complied with the provisions of the contract in every respect, while appellee argues that, under the terms of the supplemental contract, it was unnecessary for it to prove non-compliance on the part of appellant, provided it became dissatisfied with his volume of sales, and that as to that, it was the sole judge, provided only that it acted in good faith, as the trial judge found that it did.
Appellant, of course, admits that he lost money on his contract during the year 1931, and the first five months of 1932, until its termination. Nevertheless, he contends that it was still a valuable contract to him for the reason that he was then in a position to reduce his expenses substantially and still keep up his volume of sales — that up until that time he had been spending a great deal in building up his territory and could afford to spend his own money on it since he thought he had a long term contract upon which he could realize in the future. He contends that since the notice of May, 1932, was ineffective to terminate his contract, the contract remained in full force until the end of the year 1935 when the new business begun by him shortly after he left appellee’s employ became sufficiently remunerative that he would have been unwilling to give it up to return to appellee’s employ. He therefore submitted evidence as to appellee’s sales and the commissions allegedly lost to him by appellee’s wrongful termination of the contract to and including the year 1935, purporting to show damages totalling $186,345. This evidence is highly speculative. The only known factor used is the amount of the gross sales of the appellee for each of the years involved. Appellant assumes that a certain percentage of this business would have originated in his district, the percentage increasing from 28% in 1932 to 31% in 1934 and 1935 — a wholly arbitrary figure so far as we are able to ascertain. Such percentage of business would have yielded him certain gross commissions, from the amount of which he subtracts expenses not exceeding $35,000 a year, leaving a total of $163,095 for the years 1932 to 1935, inclusive. To this he adds the commission on $100,000 of sales" alleged to have been lost to the company each year through the discharge of a friend of his who took his business amounting to that figure to another company immediately upon his discharge. Such business would have added $33,250 to the commissions of appellant in the three and a half years, according to his computations. The District Court was justified in disregarding such testimony as proof of appellant’s damages, and, in the absence of any better evidence, in holding that appellant had not proved his claim for damages, conceding for the moment that he had proved breach of the contract.
However, from our consideration of all the facts of this case we are convinced of the correctness of the District Court’s conclusion that appellant did not prove his case, in that the evidence did not show that the contract of employment was wrongfully breached or terminated by appellee or that appellant was damaged by reason of any fault of appellee. We do not consider it essential to the decision of the case that we determine the validity of the supplemental contract. It is difficult to find consideration for the modification— certainly the promise of indemnification for liabilities incurred under the original contract in case of its abrogation in accordance with the terms of the supplemental, furnishes no such consideration. However, contracts may always be terminated by mutual consent, and we think there is ample evidence to establish the fact of such mutual consent. While appellant apparently had not planned to give up the district and was quite surprised at the action of appellee’s officers in notifying him of the termination of his contract, we think the oral evidence and the letters establish the fact that he acquiesced in its termination.
Moreover, we consider it a matter of some significance that the original written contract does not appear to have been treated by the parties at any time as the complete and inflexible statement of all relations between them. Appellant entered upon performance of his duties under it over two months before the written contract was even presented to him for his signature. The written contract made no reference whatever to the payment of expenses of the operation of the business under it, and yet no question was ever raised during the period of its performance by appellant as to his obligation to meet all such expenses — as stated in a letter written before appellant entered upon his duties but not again referred to. The contract was modified on at least two occasions in appellant’s favor, the benefits of both modifications being accepted by him without objection. We refer to the provision for advancements under which he had received over $20,000 prior to the termination of the contract for carrying on the operations of his office, and the revision of the commission rates to provide a sliding scale so that in normal or good times the return would be about the same as under the original, but in periods of depression, it would provide for a greater return in proportion. That it appeared that other district managers received the same treatment seems to us irrelevant — their contracts are not be-fore us and we are not called upon to interpret appellant’s relationship with appellee in the light of facts involving other persons. While we do not wish to be understood as saying that these subsequent revisions in appellant’s favor furnish consideration for the earlier revision in appellee’s favor, we do say that they indicate the shifting, developing relationship between them, and lend some credence to appellee’s testimony of the willingness of appellant’s acceptance of the termination of the contract between them.
The fact of the losses appellant had suffered under the contract in 1931 and 1932 lends further credence to appellee’s contentions. It is to be noted that even after the increase in the rate of commissions by the modification of the contract in December, 1931, appellee still made advances to appellant, the last, of $2,500 on May 2, 1932, shortly before the termination of the contract. Appellant’s testimony as to retrenchments is not convincing — while he does point to a reduction of average monthly expenditures from $5,552 in 1931, to $4,098 for the four months of his operation in 1932, the fact remains that commission averages still remained substantially below expense averages. Appellant testified that he contemplated an annual expense rate of not to exceed $35,000 after 1932, but he presented no figures whatever in support of this estimate. We note from our study of the record that after the first month of his operation when expenses totalled $5,520, appellant’s successor actually did succeed in reducing the monthly expense rate for the last half of the year 1932 below appellant’s average — the average for the last six months amounting to $3,896, according to our computation from the figures of record. During this same period, the successor maintained a slightly better average of commissions — appellant’s total for the five months of his operation in 1932 was $16,622, or a monthly average of about $3,324, while the total for the balance of the year was $24,015, or a monthly average of about $3,429. (These figures are not to be found in the printed record, but we have taken them from the amended statement of claim filed by appellee in its municipal court litigation, introduced as an exhibit in the case at bar.)
We find nothing of record to support the finding of the District Court that it was the expressed intention of the parties that commissions as provided in the contract would be credited to appellant from May 23, 1932 to December 31, 1932, and that the expenses of operating and the making of sales in the district would be charged to appellant for that period, and that if commissions exceeded the expenses for the period appellant would be credited with such excess, while if expenses exceeded commissions, he would be charged with them. In view of the fact that' the written contract of April 1929, made no reference to the payment of expenses, we think it may not be construed as expressly providing for deduction of expenses so that the letter of May 23; 1932, “you will be credited with compensation as provided by contract until the termination thereof” is a definite settlement of that question between the parties. However, as we have already pointed out, that contract did not purport to define the entire relationship between the parties. By earlier letter from appellee’s president to appellant it had been clearly stated that appellant was expected to pay all the expenses of his district, and we think that either that provision must be read into the contract, or the contract must be construed with that provision in mind. Commission rates were adjusted to meet changing conditions, although the contract did not in terms make any provision for changes, nor did it provide for the allowance of advances such as were subsequently made to appellant. Hence, we are of the opinion, that while there was no express, intention to deduct expenses from commissions, such intention can certainly be implied' from all the circumstances which must be considered in deciding this case.
We are not convinced that appellee is entitled to collect from appellant the difference between commissions and operating expenses as held by the District Court. In fact, were we called upon in this appeal to pass upon the actual accounting between the parties, we should question many of the items of expense charged to appellant during appellee’s seven months’ operation of the office in his name. For instance, we note in appellee’s itemized statement, many items arising in the Bridgeport office, and in view of the fact that Connecticut wás never in appellant’s district, we cannot understand why charges against him should arise there. Were the question before us, we would also be at a loss to understand why two contributions to the Cleveland Community Fund after he ceased management of the office and left Cleveland should be charged as office expense against him. However, the appeal here is from an adverse judgment in a suit for damages for breach of contract, and not for an accounting between the parties. Appellant has not challenged the accuracy of any figures presented by appellee, but rather denies the right to any deductions on account of expenses.' Hence these questions are not before us. We agree with the District Court that he has not proved the breach or the damage, as charged.
Judgment affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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).
Robert BARTELS, Plaintiff-Appellant, v. NEW YORK LITHOGRAPHERS’ AND PHOTO-ENGRAVERS’ UNION NO. ONE-P, formerly known as New York Photo-Engravers’ Union No. One, Defendant-Appellee.
No. 26, Docket 34675.
United States Court of Appeals, Second Circuit.
Argued Sept. 17, 1970.
Decided Sept. 17, 1970.
Solomon D. Monshine, New York City, for appellant.
Moss K. Schenck, Schenck & Schenck, New York City, for appellee.
Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.
PER CURIAM:
After argument and in open court we affirm the judgment below upon Judge Levet’s findings of fact and conclusions of law, reported at 306 F.Supp. 1266.
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:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
TOOLSON v. NEW YORK YANKEES, INC. et al.
NO. 18.
Argued October 13, 1953.
Decided November 9, 1953.
Howard C. Parke argued the cause for petitioner in No. 18. With him on the brief was Gene M. Harris.
Frederic A. Johnson argued the cause for petitioner in No. 23 and Seymour Martinson argued the cause for petitioners in No. 25. With them on the briefs were Maurice H. Koodish and Edward Martinson.
Norman S. Sterry argued the cause and filed a brief for respondents in No. 18.
Raymond T. Jackson argued the cause for respondents in Nos. 23 and 25. With him on the briefs were Benjamin F. Fiery and Louis F. Carroll.
Thomas Reed Powell filed a brief for the Boston American League Base Ball Company in No. 18, as amicus curiae, urging affirmance.
Per Curiam.
In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U. S. 200 (1922), this Court held that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws. Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.
Affirmed.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_adminactionstate
|
37
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation.
HAGANS et al. v. LA VINE, COMMISSIONER, NEW YORK DEPARTMENT OF SOCIAL SERVICES, et al.
No. 72-6476.
Argued December 11, 1973
Decided March 25, 1974
White, J., delivered the opinion of the Court, in which Douglas, BrenNAN, Stewart, Marshall, and BlacicmuN, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 550. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 552.
Carl Jay Nathanson argued the cause for petitioners, With him on the briefs were Steven J. Cole and Henry A. Freedman.
Michael Colodner, Assistant Attorney General of New York, argued the cause for respondent Lavine. With him on the brief were Louis J. Lejkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Me. Justice White
delivered the opinion of the Court.
Petitioners, recipients of public assistance under the cooperative federal-state Aid to Families With Dependent Children (AFDC) program, brought this action in the District Court for themselves and their infant children and as representatives of other similarly situated AFDC recipients. Their suit challenged a provision of the New York Code of Rules and Regulations permitting the State to recoup prior unscheduled payments for rent from subsequent grants under the AFDC program. They alleged that the recoupment regulation violated the Equal Protection Clause of the Fourteenth Amendment and contravened the pertinent provisions of the Social Security Act governing AFDC and the regulations promulgated thereunder by the administering federal agency, the Department of Health, Education, and Welfare (HEW). The action sought injunctive and declaratory relief pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 2201, and jurisdiction was invoked under 28 U. S. C. §§ 1343 (3) and (4). The District Court found that the equal protection claim was substantial and provided a basis for pendent jurisdiction to adjudicate the so-called “statutory” claim — the alleged conflict between state and federal law. After hearing, the trial court declared the recoupment regulation contrary to the Social Security Act and HEW regulations and enjoined its implementation or enforcement. Following a remand, the Court of Appeals reversed, holding that because petitioners had failed to present a substantial constitutional claim, the District Court lacked jurisdiction to entertain either the equal protection or the statutory claim. 471 F. 2d 347 (CA2 1973). The jurisdictional question being an important one, we granted certiorari. 412 U. S. 938 (1973). For reasons set forth below, we hold that the District Court had jurisdiction under 28 U. S. C. § 1343 (3) to consider petitioners’ attack on the recoupment regulation.
I
Petitioners brought this action under 42 U. S. C. § 1983, which provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
By its terms, § 1983 embraces petitioners’ claims that the challenged regulation enforced by respondent state and county welfare officials deprives them of a right “secured by the Constitution and laws,” viz., the equal protection of the laws. But the federal cause of action created by the section does not by itself confer jurisdiction upon the federal district courts to adjudicate these claims. Accordingly, petitioners relied principally upon 28 U. S. C. § 1343 (3):
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . .
Concededly, § 1343 authorizes a civil action to “redress the deprivation, under color of any State . . . regulation ... of any right . . . secured by the Constitution of the United States." Section 1343 (3) therefore conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction. If it was, it is also clear that the District Court could hear as a matter of pendent jurisdiction the claim of conflict between federal and state law, without determining that the latter claim in its own right was encompassed within § 1343. Rosado v. Wyman, 397 U. S. 397, 402-405 (1970); see also N. Y. Dept. of Social Services v. Dublino, 413 U. S. 405, 412 n. 11 (1973).
The Court of Appeals ruled that petitioners had not tendered a substantial constitutional claim and ordered dismissal of the entire action for want of subject matter jurisdiction. The principle applied by the Court of Appeals — that a “substantial” question was necessary to support jurisdiction — was unexceptionable under prior cases. Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are “so attenuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U. S. 561, 579 (1904); “wholly insubstantial,” Bailey v. Patterson, 369 U. S. 31, 33 (1962); “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288 (1910); “plainly unsubstantial,” Levering & Garrigues Co. v. Morrin, 289 U. S. 103, 105 (1933); or “no longer open to discussion,” McGilvra v. Ross, 215 U. S. 70, 80 (1909). One of the principal decisions on the subject, Ex ;parte Poresky, 290 U. S. 30, 31-32 (1933), held, first, that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented”; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that “[t]he question may be plainly unsubstantial, either because it is 'obviously without merit’ or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ Levering & Garrigues Co. v.” Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288; McGilvra v. Ross, 215 U. S. 70, 80.”
Only recently this Court again reviewed this general question where it arose in the context of convening a three-judge court under 28 U. S. C. § 2281:
“ 'Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U. S., at 33; ‘wholly insubstantial,’ ibid,.; ‘obviously frivolous,’ Hannis Distilling Co. y. Baltimore, 216 U. S. 285, 288 (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U. S. 30, 32 (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U. S. C. § 2281. A claim is insubstantial only if ' “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garri-gues Co. v. Morrin, 289 U. S. 103, 105-106 (1933); McGilvra v. Ross, 215 U. S. 70, 80 (1909).” Goosby v. Osser, 409 U. S. 512, 518 (1973).
The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U. S. 678, 683 (1946), and characterized as “more ancient than analytically sound,” Rosado v. Wyman, supra, at 404. But it remains the federal rule and needs no re-examination here, for we are convinced that within accepted doctrine petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy.
Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U. S. 22, 25 (1913). Here, §§ 1343 (3) and 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The District Court’s jurisdiction, a matter for threshold determination, turned on whether the question was too insubstantial for consideration.
In Dandridge v. Williams, 397 U. S. 471 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. We held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, we sustained the regulation. But Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still “be rationally based and free from invidious discrimination.” Id., at 487. See Jefferson v. Hackney, 406 U. S. 535, 546 (1972); Carter v. Stanton, 405 U. S. 669, 671 (1972); cf. San Antonio School District v. Rodriguez, 411 U. S. 1 (1973).
Judged by this standard, we cannot say that the equal protection issue tendered by the complaint was either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court. We are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other. Nor is it immediately obvious to us from the face of the complaint that recouping emergency rent payments from future welfare disbursements, which petitioners argue deprived needy children because of parental default, was so patently rational as to require no meaningful consideration.
The Court of Appeals rightly felt obliged to measure petitioners’ complaint that the challenged regulation violated the Equal Protection Clause “by discriminating irrationally and invidiously between different classes of recipients” against the standard prescribed by Dan-dridge. The Court of Appeals then reasoned that without the recoupment regulation, those who were subject to it would be preferred over those who had paid their full rent out of their normal monthly grant. The court further reasoned that the regulation provided an incentive for welfare recipients to properly manage their grants and not become delinquent in their rent. It concluded that the regulation was rationally based and that no substantial constitutional question within the jurisdiction of the District Court had been presented.
This reasoning with respect to the rationality of the regulation and its propriety under the Equal Protection Clause may ultimately prove correct, but it is not immediately obvious from the decided cases or so “very plain” under the Equal Protection Clause. We think the admonition of Bell v. Hood, 327 U. S. 678 (1946), should be followed here:
“Jurisdiction ... is not defeated as respondents seem to contend, by the possibility that the aver-ments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” Id., at 682 (citations omitted).
As was the case in Bell v. Hood, we cannot “say that the cause of action alleged is so patently without merit as to justify, even under the qualifications noted, the court’s dismissal for want of jurisdiction.” Id., at 683. Nor can we say that petitioners’ claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits.” Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 666-667 (1974). (Citations omitted.)
II
Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the “statutory” claim. See supra, at 536. The latter was to be decided first and the former not reached if the statutory claim was dispositive. California Human Resources Dept. v. Java, 402 U. S. 121, 124 (1971); Dandridge v. Williams, 397 U. S., at 475-476; Rosado v. Wyman, 397 U. S., at 402; King v. Smith, 392 U. S. 309 (1968). The constitutional claim could be adjudicated only by a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. Swift & Co.v. Wickham, 382 U. S. Ill (1965); Rosado v. Wyman, supra, at 403. Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U. S. C. § 1253.
The procedure followed by the District Court — initial determination of substantiality and then adjudication of the “statutory” claim without convening a three-judge court — may appear at odds with some of our prior decisions. See, e. g., Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966); Florida Lime & Avocado Grow ers v. Jacobsen, 362 U. S. 73 (1960). But, we think it accurately reflects the recent evolution of three-judge-court jurisprudence, “this Court's concern for efficient operation of the lower federal courts,” and “the constrictive view of the three-judge [court] jurisdiction which this Court has traditionally taken.” Swift & Co. v. Wickham, supra, at 128, 129 (citations omitted). In Rosado v. Wyman, supra, at 403, we suggested that
“[e]ven had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U. S. Ill (1965).”
It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, could then merely pass the statutory claim back to the single judge. See Kelly v. Illinois Bell Telephone Co., 325 F. 2d 148, 151 (CA7 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F. 2d 317, 319-320 (CA6 1958); Doe v. Lavine, 347 F. Supp. 357, 359-360 (SDNY 1972); cf. Bryant v. Carleson, 444 F. 2d 353, 358-359 (CA9 1971). “In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge’s decision resolves the case, for there is then no need to convene the three-judge court.” Norton v. Richardson, 352 F. Supp. 596, 599 (Md. 1972) (citations omitted). Section 2281 does not forbid this practice, and we are not inclined to read that statute “in isolation with mutilating literalness . . . .” Florida Lime & Avocado Growers v. Jacobsen, supra, at 94 (Frankfurter, J., dissenting).
Ill
Taking a jaundiced view of the constitutional claim, the dissenters would have the District Court dismiss the Supremacy Clause (“statutory”) issue, convene a three-judge court, and reject the constitutional claim, all of this, apparently, as an exercise of the discretion which the District Court, under Mine Workers v. Gibbs, 383 U. S. 715 (1966), is claimed to have over the pendent federal claim. But Gibbs was oriented to state law claims pendent to federal claims conferring jurisdiction on the District Court. Pendent jurisdiction over state claims was described as a doctrine of discretion not to be routinely exercised without considering the advantages of judicial economy, convenience, and fairness to litigants. For, “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” Id., at 726 (footnote omitted).
In light of the dissent’s treatment of Gibbs, several observations are appropriate. First, it is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims.
Second, it would reasonably follow that other considerations may warrant adjudication rather than dismissal of pendent state claims. In Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909) the Court held that the state issues should be decided first and because these claims were dispositive, federal questions need not be reached:
“Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Id., at 193.
Siler is not an oddity. The Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims. See, e. g., Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298, 303-304, 310 (1913); Ohio Tax Cases, 232 U. S. 576, 586-587 (1914); Greene v. Louisville & Interurban R. Co., 244 U. S. 499, 508-509 (1917); Louisville & Nashville R. Co. v. Greene, 244 U. S. 522, 527 (1917); Davis v. Wallace, 257 U. S. 478, 482, 485 (1922); Chicago G. W. R. Co. v. Kendall, 266 U. S. 94, 97-98 (1924); Cincinnati v. Vester, 281 U. S. 439, 448-449 (1930); Hillsborough v. Cromwell, 326 U. S. 620, 629 (1946). The doctrine is not ironclad, see Sterling v. Constantin, 287 U. S. 378, 393-394, 396 (1932), but it is recurringly applied, and, at the very least, it presumes the advisability of deciding first the pendent, nonconstitutional issue.
Gibbs did not cite Siler or like cases, nor did it purport to change the ordinary rule that a federal court should not decide federal constitutional questions where a dis-positive nonconstitutional ground is available. The dissent uncritically relies on Siler but ignores the preference stated in that case for deciding nonconstitutional claims even though they are pendent and, standing alone, are beyond the jurisdiction of the federal court.
Third, the rationale of Gibbs centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with the controlling principles and the authority to render a final judgment. These considerations favoring state adjudication are wholly irrelevant where the pendent claim is federal but is itself beyond the jurisdiction of the District Court for failure to satisfy the amount in controversy. In such cases, the federal court’s rendition of federal law will be at least as sure-footed and lasting as any judgment from the state courts.
The most relevant cases for our purposes, of course, are those decisions such as King v. Smith, 392 U. S. 309 (1968), Rosado v. Wyman, 397 U. S. 397 (1970), and Dandridge v. Williams, 397 U. S. 471 (1970), where the jurisdictional claim arises under the Federal Constitution and the pendent claim, although denominated “statutory,” is in reality a constitutional claim arising under the Supremacy Clause. In these cases the Court has characteristically dealt with the “statutory” claim first “because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TV A, 297 U. S. 288, 346-347 (Brandéis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449.” Dandridge v. Williams, supra, at 475-476.
In none of these cases did the Court think that with jurisdiction fairly established, a federal court, under Gibbs, must nevertheless decide the constitutional issue and avoid the statutory claim if, upon weighing the two claims, the statutory claim is strong and the constitutional claim weak. On the contrary, Mr. Justice Harlan, writing for the Court in Rosado v. Wyman, and with the principles of Gibbs well in mind, noted that the pendent statutory question was essentially one of federal policy and that the argument for the exercise of pendent jurisdiction was “ ‘particularly strong.’ ” 397 U. S., at 404. And Gibbs itself observed the “special reason for the exercise of pendent jurisdiction” where the Supremacy Clause is implicated: “the federal courts are particularly appropriate bodies for the application of pre-emption principles.” 383 U. S., at 729.
The judgment of the Court of Appeals is reversed and the case remanded to that court for further proceedings consistent with this opinion.
So ordered.
AFDC is one of several major categorical public assistance programs established by the Social Security Act of 1935, and as we described in King v. Smith, 392 U. S. 309, 316-317 (1968), it is founded on a scheme of cooperative federalism:
“It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627, 42 U. S. C. §§ 601, 602, 603, and 604. See [U. S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 21-23 (1964)]. The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U. S. C. § 602 (1964 ed., Supp. II). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§2200, 2300 . . .
See also Rosado v. Wyman, 397 U. S. 397, 407-409 (1970).
Under the Social Security Act, HEW withholds federal funds for implementation of a state AFDC plan until compliance with the Act and the Department's regulations. HEW may also terminate partially or entirely federal payments if "in the administration of the [state] plan there is a failure to comply substantially with an)provision required by section 602 (a) of [the Act] to be included in the plan.” 42 U. S. C. § 604. See King v. Smith, supra, at 317 n. 12; Rosado v. Wyman, supra, at 420-422.
The challenged regulation provides, in pertinent part:
“(g) Payment for services and supplies already received. Assistance grants shall be made to meet only current needs. Under the following specified circumstances payment for services or supplies already received is deemed a current need:
“(7) For a recipient of public assistance who is being evicted for nonpayment of rent for which a grant has been previously issued, an advance allowance may be provided to prevent such eviction or rehouse the family; and such advance shall be deducted from subsequent grants in equal amounts over not more than the next six months. When there is a rent advance for more than one month, or more than one rent advance in a 12 month period, subsequent grants for rent shall be provided as restricted payments in accordance with Part 381 of this Title.” 18 N. Y. C. R. R. § 352.7 (g) (7).
As AFDC recipients, petitioners receive monthly grants calculated to provide 90% of their family needs for shelter, fuel, and other basic necessities. For one reason or another, each petitioner was unable to pay her rent, and faced with imminent eviction, she received emergency rent payments from the Nassau Count}' Department of Social Services. Because the State characterized these payments as “advances,” the amount of these disbursements was deducted or recouped from petitioners’ subsequent monthly familial assistance grants pursuant to § 352.7 (g) (7).
Petitioners alleged that the New York State recoupment regulation was contrary to the following provisions of the federal statute and regulations because it assumed, contrary to fact, that those funds, extended to a recipient to satisfy a current emergency rent need, remain available as income for the family’s need during the mandated six-month recoupment period.
Title 42 U. S. C. §§ 602 (a) (7) and (a) (10) state in pertinent part:
“(a) A State plan for aid and services to needy families with children must ... (7) except as may be otherwise provided in clause (8), provide that the [administering] State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income ....
“(10) provide, effective July 1, 1951, that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals . . . .”
45 CFR § 233.20 (a) (3) (ii) (c):
“(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD must, as specified below:
“(3) ....
(ii) Provide that, in establishing financial eligibility and the amount of the assistance payment: . . . (c) only such net income as is actually available for current use on a regular basis will be considered, and only currently available resources will be considered . . . .”
On appeal from the District Court’s entry of the injunction, the Court of Appeals without extended discussion found jurisdiction for the § 1983 action under 28 U. S. C. § 1343 (3). Without passing on the merits of the District Court’s findings and conclusions, the Court of Appeals, with one judge dissenting, ordered a remand to that court to determine whether the recoupment of prior advance rent payments from current grants is a “reduction in grant” that would trigger the New York fair-hearing procedures under 18 N. Y. C. R. R. § 351.26. 462 F. 2d 928 (CA2 1972).
On remand, the District Court allowed additional parties who had received fair hearings to intervene and file a complaint. At the invitation of the court, HEW filed an amicus curiae brief which concluded that “the New York regulation does contravene federal requirements because it assumes for particular months the existence of income and resources which by definition are not currently available for such months.” Brief for Petitioners Appendix 2. The District Court once again held the recoupment regulation invalid as violative of the Social Security Act and HEW regulations and enjoined its enforcement and implementation.
In view of our disposition of this case, we do not reach the question whether, wholly aside from the pendent-jurisdiction rationale relied upon by the District Court, other valid grounds existed for sustaining its jurisdiction to entertain and decide the claim of conflict between federal and state law. It has been suggested, for example, that the conflict question is itself a constitutional matter within the meaning of § 1343 (3). Connecticut Union of Welfare Employees v. White, 55 F. R. D. 481, 486 (Conn. 1972). For purposes of interpreting and applying 28 U. S. C. § 2281, the three-judge-court provision, a claim of conflict between federal and state law has been denominated a claim not requiring a three-judge court. Swift & Co. v. Wickham, 382 U. S. Ill (1965). But Swift itself recognized that a suit to have a state statute declared void and to secure the benefits of the federal statute with which the state law is allegedly in conflict cannot succeed without ultimate resort to the Federal Constitution — “to be sure, any determination that a state statute is void for obstructing a federal statute does rest on the Supremacy Clause of the Federal Constitution.” Id., at 125. Moreover, when we have previously determined that state AFDC laws do not conform to the Social Security Act or HEW regulations, they have been invalidated under the Supremacy Clause. See Townsend v. Swank, 404 U. S. 282, 286 (1971). It is therefore urged that the “secured by the Constitution” language of § 1343 (3) should not be construed to exclude Supremacy Clause issues. That question we leave for another day.
Petitioners contend that § 1983 authorizes suits to vindicate rights under the “laws” of the United States as well as under the Constitution and that a suit brought under § 1983 to vindicate a statutory right under the Social Security Act, is a suit under an Act of Congress “providing for the protection of civil rights, including the right to vote” within the meaning of § 1343 (4). They further argue that in any event, § 1343 (3) in particular, and § 1343 in general, should be construed to invest the district courts with jurisdiction to hear any suit authorized by § 1983. These issues we also do not reach. See Rosado v. Wyman, 397 U. S., at 405 n. 7; see also Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv. Civ. Rights-Civ. Lib. L. Rev
Question: What is the state of the state agency associated with the administrative action?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_typeiss
|
D
|
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.
LA FEVER, INC., Plaintiff-Appellant, v. ALL-STAR INSURANCE CORPORATION, Defendant-Appellee. LA FEVER, INC., Plaintiff-Appellant, v. WESTERN WORLD INSURANCE COMPANY, INC., Defendant-Appellee.
No. 76-2310.
United States Court of Appeals, Fifth Circuit.
April 28, 1978.
Maurice Rosen, No. Miami Beach, Fla., for plaintiff-appellant.
George J. Baya, Miami, Fla., for defendants-appellees.
Before TUTTLE, COLEMAN , and CLARK, Circuit Judges.
Judge Coleman did not participate in the consideration or decision of this case. Pursuant to 28 U.S.C. § 46(d), the case is decided by a quorum of the court.
CHARLES CLARK, Circuit Judge:
La Fever, Inc., appeals from an order denying its motion for a new trial based on the recanting affidavit of a witness. At an evidentiary hearing before the district judge who also presided over the original jury trial, the witness reaffirmed his trial testimony. The district court found that the witness had undoubtedly committed perjury. However, the court also found that the witness was wholly unworthy of belief as to any testimony or affidavit given, and therefore it could not determine which of the witness’ versions of the facts was perjurious.
La Fever challenges the legal standard applied by the district court in making these findings. It urges that when a material witness recants, a trial court has no further discretion and a new trial must be granted, citing Martin v. United States, 17 F.2d 973 (5th Cir.), cert. denied, 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408 (1927), which states that in a criminal action the court has a duty to grant a new trial where a government witness admits on oath that he gave perjured or mistaken testimony as to a material issue. The problem for appellant’s argument here is similar to that faced by the appellant Martin in his appeal. The assertion of perjury was not proven. Martin was refused new trial relief because that court was unable to find, just as the trial judge was here, that the recanting affidavit was true.
Decisions subsequent to Martin have spoken to the legal standard for determining whether perjury has been committed. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), citing Martin, set out this three-part approach to new trial requests: [A] new trial should be granted when,
(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury might have reached a different conclusion.
(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial, (emphasis in original)
Our circuit referred to Larrison as setting “well defined standards” in Newman v. United States, 238 F.2d 861, 862 (5th Cir. 1956). Does then the Larrison requirement that the court be “reasonably well satisfied that the testimony given by a material witness is false” require us in this civil case to apply some standard of review which differs from the clearly erroneous testing we would normally give to fact findings of the trial court? No is the answer, for two reasons.
First, this circuit has never applied any part of the Larrison standards to review of a new trial ruling in a civil case. English v. Mattson, 214 F.2d 406, (5th Cir. 1954), reviewed the denial of a new trial in a double recantation setting almost identical to that present in the case at bar. There we stated:
It has been uniformly held that according to Rule 59 of Civil Procedure, 28 U.S.C.A., a motion for new trial is addressed to the sound discretion of the trial judge, and will not be disturbed except for a clear abuse of that discretion. Such a motion grounded upon newly discovered evidence will not be granted unless (1) the facts discovered are of such a nature that they would probably change the outcome; (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper diligence; and (3) the facts are not merely cumulative or impeaching.
214 F.2d at 409.
In Fulenwider v. Wheeler, 262 F.2d 97, 100 (5th Cir. 1959), a civil case involving a motion for a new trial based on the affidavit of a recanting witness, we stated:
it is in the absence of a clear abuse of discretion for the trial judge and not the appellate judges to say whether the case is one for-setting aside the verdict, and the district judge should not set aside a verdict on such a motion unless it appears to him that the tendered evidence is of such a nature that if offered on a new trial, it would probably change the outcome.
Second, any distinction in the standards is immaterial to resolution of the instant appeal. This is clearly established in United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946). There the Court reversed the Seventh Circuit for overturning a trial judge’s finding that perjury did not exist in denying a new trial in a criminal case. The Court explicitly pretermitted a determination of whether the Larrison standard or the civil case new trial standard should have been the guide. More importantly, Johnson was emphatic in stating that an appellate court could not intervene to reverse a trial court’s findings of fact unless it should “clearly appear that the findings are not supported by any evidence.” 327 U.S. at 112, 66 S.Ct. at 466. See also United States v. Mackin, 183 U.S.App.D.C. 65, 561 F.2d 958 (1977).
The record establishes that the trial court’s findings here are not clearly erroneous. Perjury was not proven. The judgment appealed from is
AFFIRMED.
. English, in turn, relies on Glade v. Allied Electric Products, Inc., 135 F.2d 590 (7th Cir. 1943), a case decided by the Seventh Circuit subsequent to Larrison, which upholds the denial of a bill of review in a civil action without citing its criminal case precedent in Larrison.
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_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".
UNITED STATES of America, Plaintiff, v. WYOMING NATIONAL BANK OF CASPER, Defendant-Appellee, H. A. True, Jr., Impleaded-Defendant-Appellee, Riverton Auction and Livestock Co., Impleaded-Defendant-Appellant.
No. 74-1117.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 11, 1974.
Decided Nov. 4, 1974.
No appeal by, or appearance for, the United States.
Harold E. Meier, Lander, Wyo. (Meier & Gist, Lander, Wyo., on the brief), for impleaded-defendant-appellant Riverton Auction and Livestock Co.
William E. Barton, Casper, Wyo. (Claude W. Martin and Brown, Drew, Apostólos, Barton & Massey, Casper Wyo., on the brief), for defendant-ap-pellee Wyoming National Bank of Cas-per.
Houston G. Williams, Casper Wyo., (Frank D. Neville and Wehrli & Williams, Casper, Wyo., on the brief), for impleaded-defendant-appellee H. A. True, Jr.
Before BREITENSTEIN, SETH and McWilliams, circuit judges.
BREITENSTEIN, Circuit Judge.
This controversy relates to the respective rights of creditors of a defunct packing company. The action was brought by the United States to enforce a tax levy. Jurisdiction lies under 28 U.S.C. §§ 1340 and 1345; see also 26 U.S.C. § 7402. The district court gave judgment for two secured creditors and against both the United States and the unpaid seller of certain cattle. The United States has not appealed. Our concern is with the claims asserted by the seller against the secured creditors. We affirm.
Appellees Wyoming National Bank of Casper and H. A. True were secured creditors of Wyoming Beef Packers, Inc. Appellant Riverton Auction and Livestock Co. on November 24, 1970, sold cattle to Packers. Packers took immediate possession of the cattle and they became part of its inventory. In payment for the cattle Packers gave River-ton two checks totalling $10,155.38. Bank refused to pay one check because of insufficient funds and the other because of an insufficient endorsement. On December 6 an audit disclosed that Packers was in default under its loan and security agreement with Bank. On the next day Packers turned all of its assets over to Bank. Riverton has never been paid for the cattle.
The United States sued Bank to enforce a tax levy against property of Packers held by Bank. Bank impleaded True and Riverton. Riverton filed a cross-claim against Bank and True. True filed a cross-claim against River-ton. Trial was to the court which made findings that are not here contested. Bank was adjudged a first, and True a second, secured creditor with rights superior to the United States. Riverton was relegated to the position of a general creditor.
On the day of trial, but before it began, Riverton moved under Rule 41, F.R.Civ.P., to dismiss its cross-claims against Bank and True, and moved under Rule 21, F.R.Civ.P., to be dropped as a party. The motions were opposed by the other parties and were denied by the court. Riverton claims that under Wyoming law it has a superior right to recover the unpaid purchase money, and desires to have that issue decided in state court.
The motions are interrelated and may well be considered together. River-ton was a proper party to the suit. In an action to enforce a tax lien “[a]ll persons having liens upon or claiming any interest in the property involved in such action shall be made parties thereto.” 26 U.S.C. § 7403(b). Riverton and True each claimed an interest in the property which Bank held and which the United States asserted was subject to its levy. Joinder was feasible and proper under Rule 19 because without River-ton and True in the suit Bank would be subjected to the “substantial risk of incurring double, multiple, or otherwise inconsistent obligations.”
Rule 41(c) provides that voluntary dismissal by a cross-claimant of a cross-claim is impermissible after a responsive pleading has been filed. Because responsive pleadings to Riverton’s cross-claim had been filed, dismissal could be had only by court order, Rule 41(a)(2), reviewable for abuse of discretion. Shaffer v. Evans, 10 Cir., 263 F.2d 134, 135. The grant of the motion to dismiss would not have taken River-ton out of the case because it was both an impleaded defendant and a cross-defendant.
Rule 21 permits a party to be dropped on motion. Here again the motion is addressed to the discretion of the court. 7 Fed.Pract. & Proc. § 1688, p. 342; see also Standard Industries, Inc. v. Mobil Oil Corporation, 10 Cir., 475 F.2d 220, 232, cert. denied, 414 U.S. 829, 94 S.Ct. 61, 38 L.Ed.2d 63. The court did not abuse its discretion in denying either the Rule 41 or the Rule 21 motion. Riverton was a proper party whose presence was needed to protect the rights of all parties and to accomplish the expeditious determination of the litigation. Ibid.
We turn to the merits. River-ton argues that the Packers and Stockyards Act, 7 U.S.C. § 181 et seq., and particularly regulations of the Secretary of Agriculture promulgated thereunder and appearing as 9 CFR §§ 201.43 (b) and 201.99, control. Reliance is placed on In re Samuels & Co., Inc., 5 Cir., 483 F.2d 557. That decision was reversed sub nom., Mahon v. Stowers, 416 U.S. 100, 94 S.Ct. 1626, 40 L.Ed.2d 79. Among other things, the Supreme Court said that the interests of cattle sellers “like that of similarly situated sellers, would depend for protection upon their taking of appropriate steps under the commercial law of the various States in which they did business.” 416 U.S. at 112, 94 S.Ct. at 1632, 40 L.Ed.2d at 88. The Court went on to say that a course of conduct mandated by the Act or regulations might “be relevant or even dispositive under state law.” 416 U.S. at 114, 94 S.Ct. at 1633, 40 L.Ed.2d at 89. In the case at bar we find nothing in the Act, or in the mentioned regulations, which is relevant to or dis-positive of the state law issues.
This brings us to Wyoming law. Riverton argues that federal courts are bound by a pertinent Wyoming decision. In a state court suit involving Bank, Packers, and an unpaid seller, the seller prevailed over secured creditors. The Wyoming Supreme Court affirmed on the basis of an equally divided court. Wyoming National Bank of Casper v. Greenwald, Wyo., 506 P.2d 434. Two justices voted to reverse on the ground that summary judgment was improper because evidence should have been received as to Bank’s good faith and two voted to affirm on the ground that it was apparent as a matter of law that Bank was not a good faith purchaser.
The record before us establishes Bank’s good faith both in the receipt of its security interest and in its refusal to honor Packers’ checks payable to Riverton. The decision of the Wyoming Supreme Court is not pertinent. The proceedings of the state district court are not reported and are not before us. We have no way of knowing the facts before that court or the rationale of its decision. In Wyoming a district court decision does not have precedential value and is persuasive only to the extent of its underlying logic. State Board of Equalization v. Courtesy Motors, Inc., Wyo., 362 P.2d 134, 135. A federal court need not follow state decisions which are not precedents in the state itself. King v. Order of United Commercial Travelers of America, 333 U.S. 153, 160-161, 68 S.Ct. 488, 92 L.Ed. 608. Absent a controlling Wyoming decision, we must apply that state’s law as we see it.
The issues require consideration of the Wyoming version of the Uniform Commercial Code. See Wyo.Stat., 1973 Cum.Supp. Chap. 22, §§ 34-1-101 to 34-10-105. The trial court’s finding of good faith on the part of Bank is not attacked on this appeal. When Packers took possession of the cattle, it had the power to transfer good title to Bank, a good faith purchaser for value, see § 34-2-403(1). A purchaser is one who takes by purchase. § 34-1-201(33). Purchase includes taking by mortgage, pledge, lien or any other voluntary transaction creating an interest in property. § 34-1-201(32). A person gives value for rights if he acquires them as security for, or in partial satisfaction of, a pre-existing claim. § 34-1-201(44) (b). The transfer occurred when Packers took possession of the cattle because Bank’s security interest then attached. See § 34-9-204; First National Bank of Elkhart County v. Smoker, Ind.App., 286 N.E.2d 203, 209. The only title interest which Riverton could retain was a security interest. See § 34-2-401(1).
The trial court found that when Packers took possession of the cattle they became part of its inventory. Riv-erton does not attack the validity of the security agreements held by Bank and True. The inventoried cattle, and the proceeds therefrom, were subject to those agreements. See § 34-9-306. Riverton does not claim a security interest for itself. Rather, it argues that UCC must be liberally construed, see § 34-1-102(1), and in the absence of specific provisions resort must be had to principles of law and equity. . It says that as a defrauded seller its rights are superior to those of Bank and True. The difficulty is that § 34-2-702(2) provides that on a credit sale to an insolvent buyer, seller has 10 days to make written demand for reclamation and: “Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or of intent to pay.” This eliminates any common-law claim by a defrauded seller. Riverton made no demand for reclamation within the 10-day period provided by § 34-2-702(2).
Riverton relies on § 34-2-507 (2), which provides that: “Where payment is due and demanded on the delivery to the buyer of goods * * * his right as against the seller to retain or dispose of them is conditional upon his making the payment due.” The provision applies between seller and buyer. We are concerned with the respective rights of seller and holders of security interests.
Although Riverton does not now assert a security interest, it should be noted that Riverton made no effort to comply with the provisions of § 34-9-312(3) and (4) relating to the respective priorities of a purchase money security interest and a conflicting security interest.
Riverton did not take advantage of the rights which it had under Wyoming law and must now yield to the superior rights of Bank and True. The United States District Judge for Wyoming so held. In the absence of a controlling state decision, his determination of the law of that state is most persuasive. Julander v. Ford Motor Co., 10 Cir., 488 F.2d 839, 844.
Affirmed.
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_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".
MASON v. ZERBST, Warden.
No. 1094.
Circuit Court of Appeals, Tenth Circuit.
Jan. 7, 1935.
Harry C. Green, of Denver, Colo. (H. A. Russell, of Topeka, Kan., on the brief), for appellant.
S. S. Alexander and Dan B. Cowie, both of Topeka, Kan., for appellee.
Before LEWIS and PHILLIPS, Circuit Judges, and JOHNSON, District Judge.
JOHNSON, District Judge.
On January 23, 1934, Ben F. Mason, appellant, filed in the court below his petition praying that a writ of habeas corpus issue to appellee, warden of the United States Penitentiary at Leavenworth, directing him at a time to be stated to have the petitioner before the court and on hearing had that petitioner be discharged from said penitentiary. On March 10, 1934, the court made the following order :
“Now on this 10th day of March, A. D. 1934, this cause comes on for hearing on the petition and the response thereto filed herein, and the Court having fully examined the petition, the exhibits attached thereto, the response, and the exhibits attached thereto, and having heard the oral arguments of counsel for the petitioner and respondent, finds that the petition for the writ of habeas corpus should be denied, and
“It is therefore by the Court considered, ordered and adjudged that the petition for writ of habeas corpus prayed for herein be and the same is hereby denied, to which finding and order the petitioner excepts and his exceptions are hereby allowed.”
As seen from the recitals contained in the order of the court, the case was heard and disposed of on the pleadings,
The applicable statute is the second paragraph of section 725, tit. 18, USCA, Probation Act § 2, as amended on June 16, 1933. As amended, the statute reads:
“At any time within the probation period the probation officer may arrest the probationer wherever found, without a warrant, or the court which has granted the probation may issue a warrant for his arrest, which warrant may be executed by either the probation officer or the United States marshal of either the district in which the probationer was put upon probation or of any district in which the probationer shall be found and, if the probationer shall be so arrested in a district other than that in .which he has been put upon probation, any of said officers may return probationer to 'the district out of which such warrant shall have been issued. Thereupon such probationer shall forthwith be taken before the court. At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.”
Numerous allegations are made in the petition filed by appellant in the court below, which in the answer are either admitted, explained, or denied, and which in our view of the case it is unnecessary to set out or consider. The allegations of the petition which require our attention are:
“That on or about October 10, 1930, he appeared before the United States Court for the Northern District of Texas, Amarillo Division, to answer to a grand jury indictment containing two counts of alleged forgery; that upon a plea of guilty to both counts in said indictment, was sentenced by the Court to a term of eighteen (18) months confinement in the United States Penitentiary at Leavenworth, Kansas.
“Your petitioner further shows that on November 15, 1930, the Honorable Court for the Northern District of Texas, reduced the said eighteen (18) months sentence of confinement in 'the United States Penitentiary, on one count of said indictment, to one hundred (100) days confinement in the Potter County, Texas, jail and placed your petitioner on probation for a period of two years, or until November 15, 1932, on the other count of said indictment; and that upon completion of the aforesaid jail'sentence was released from custody and permitted to go at large upon said probation. * * *
“Your petitioner further shows that on November 13, 1933, almost one year after the expiration of his two years probation period as fixed by the United States Court at Amarillo, Texas, on November 15, 1930, he was taken before the Honorable Janjes C. Wilson, sitting as a Court for the Northern District of Texas, at Fort Worth, and informed erroneously by Probation Officer John Alderman that your petitioner was under an eighteen (18) months sentence, execution suspended and your petitioner placed on probation for a period of three (3) years, instead of two (2) years; and recommended that the alleged probation be revoked and the suspended sentence be executed, which was so ordered; and that he is now and has been serving said sentence in the United States Penitentiary at Leavenworth, Kansas, since November 13, 1933. * * *
“That the said Honorable Court was without legal authority, after expiration, of your petitioner’s period of probation, in ordering the alleged probation revoked and the eighteen (18) months suspended sentence executed.”
According to these allegations appellant was, after the expiration of the two-year period of his probation, arrested and taken before the court by which his probation was granted, and that after 1he hearing the court ordered that the suspended sentence be executed. It was under the sentence originally pronounced that appellant was committed to the penitentiary, and it was under the authority of said commitment that he was being held by the warden at the time he filed his petition for the writ of habeas corpus.
According to the record, appellant was charged in the indictment with a violation of section 262, tit. 18, USCA. The maximum penalty for a violation of this statute is fifteen years. It follows that the court on November 13, 1933, under the express language of the above-quoted paragraph of the Probation Act, namely: “At any time after the probation period, but within the maximum period for which the defendant might originally have been sentenced, the court may issue a warrant and cause the defendant to be arrested and brought before the court. Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed” — had authority to revoke the order of probation whether it was for two or three years and to enforce the original sentence.
It appears from the contention made in the original brief filed in this court that appellant filed his petition in the court below, prosecuted it there, and took his appeal to this court as the result of misapprehension as to the scope of the amendment of June 16, 1933, of the second paragraph of said section 725, it being supposed apparently that the amendment took the place of the entire paragraph, while in fact it took the place of the first sentence only of the paragraph.
Judgment 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_weightev
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Ramona CORDERO, Appellee, v. Thomas H. PASQUITH, Appellant. Victor M. CORDERO, Appellee, v. Thomas H. PASQUITH, Appellant.
Nos. 15394, 15395.
United States Court of Appeals, Fourth Circuit.
Argued May 3, 1971.
Decided Oct. 22, 1971.
Samuel S. Smalkin, Baltimore, Md. (Rollins, Smalkin, Weston & Andrew and Hyman Ginsberg, Ginsberg & Ginsberg, Baltimore, Md., on brief), for appellant.
Robert C. Verderaime, Baltimore, Md. (Verderaime & DuBois, Baltimore, Md., on brief), for appellees.
Before BRYAN, WINTER and BUTZNER, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge:
In an automobile collision the night of May 27, 1964 on U. S. Route 13 in Maryland, Ramona Cordero, a passenger in the car driven by her former husband, Victor Cordero, was hurt. Thomas Pasquith was the driver of the other vehicle, a pick-up truck. Normally the road was a dual highway, that is, two northbound lanes separated from two southbound lanes by a median strip. At the locus in quo, the northbound lanes had been closed and the southbound had been converted into a two-way highway, with a white line running down the center marking the two lanes. Additionally, there were signs and barrel-barricades with flashing lights, warning of the reduction of the route and indicating its lane division.
The Cordero car proceeding south-wardly was thus directed into, and confined to, a single lane. Going northward Pasquith was similarly restricted. Neither vehicle was exceeding the speed limit. However, either because of fatigue, unfamiliarity with the road or the rain, Victor drove the Cordero ear across the center line as Pasquith approached. The rear left side of the car struck the left front of the latter’s truck.
To avoid collision, Pasquith turned off the righthand edge of the paved portion of the highway, putting the right wheels onto the shoulder but leaving the left wheels on the pavement. At this point the northbound lane — Pasquith’s—was 12 feet wide with a 4% foot macadam shoulder. Photographs indicate that the latter was coterminous with the pavement, without substantial separation, depression or elevation.
Ramona and Victor Cordero each sued Pasquith who counterclaimed against Victor. A jury was waived in each claim. Judgment went for Ramona against Pasquith. The latter, for contributory negligence, was denied recovery on his counterclaim against Victor. Victor’s action against Pasquith was dismissed. Pasquith has appealed; Victor has not.
These are the fact findings of the trial court:
“I believe that the weight of the credible evidence and the plausibility and the probability of what happened is that both drivers were negligent. I find that Mr. Cordero came across the center line. There is no conceivable reason why Pasquith should have gone across the center line. He knew the road. Of course, it’s possible that his car could have skidded. It’s equally possible that the other car could have skidded. * * *
“I find he [Cordero] was negligent in getting over onto that side of the road; but I find Mr. Pasquith was also clearly negligent.
“In the first place, Mr. Pasquith didn’t see the Cordero car, on his first statement, until it was two car lengths from him. Well now, if he didn’t see the car that was within two car lengths from him, he was guilty of negligence. * * * Assuming that Mr. Pasquith first saw the Cordero car when it was five or six car lengths away, on the wrong side of the road coming towards him, he was negligent not to have seen the car sooner. * * *
“He said he got both right wheels on the shoulder with both left wheels still on the road. I don’t believe that is exactly what happened, but assuming that it was, if he had been looking out soon enough, he should have pulled his car entirely off the trav-elled portion of the road, or enough off the travelled portion of the road so that this other car, that may have been sliding, wouldn’t have slid into him.
“It’s quite apparent that the man who was following him and who was going about the same rate of speed, whatever that rate of speed may have been, had no difficulty in pulling his car entirely off the road and on to the grass within a very short distance, because he was following fairly closely behind and pulled his car entirely off on the grass.
“Mr. Pasquith, I find, did not see the car soon enough and did not take the proper action to avoid the accident.
“The result of that is that there must be a verdict in favor of Pas-quith in the suit brought by Victor Cordero; but a verdict in favor of Mrs. Ramona Cordero against Pas-quith.” (Accent added.)
In holding Pasquith negligent the findings and conclusions of the District Court are clearly erroneous. F.R.C.P. 52(a). The proof does not support this view. Due care did not demand more of him than the movement he executed to the right and onto the shoulder.
Pasquith was entitled to peremptory exoneration. Also, he was entitled to a declaration of liability of Victor Cordero on his counterclaim. Consequently, we must vacate the judgment granted Ramona Cordero against Pasquith, and remand the action for the assessment of damages in favor of Pasquith against Victor.
Vacated and remanded.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_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".
Armour BAILEY, Appellant, v. UNITED STATES of America, Appellee.
No. 7466.
United States Court of Appeals Tenth Circuit.
Nov. 19, 1963.
Erwin A. Cook, Oklahoma City, Okl., for appellant.
Robert M. Green, Asst. U. S. Atty. (Newell A. George, U. S. Atty., District of Kansas, was with him on the brief), for appellee.
Before PICKETT, LEWIS, and BREITENSTEIN, Circuit Judges.
PER CURIAM.
For the second time appellant is here seeking relief under 28 U.S.C. § 2255 from a sentence imposed under 18 U.S.C. § 2113. The trial court, without a hearing, denied relief. On his prior application appellant contended that his guilty plea was not made voluntarily and understanding^. The trial court held to the contrary and we affirmed. Bailey v. United States, 10 Cir., 312 F.2d 679.
Appellant now contends that the sentence should be vacated because the prosecution followed an illegal arrest and search. We have held to the contrary in a case brought by a codefendant. See Sullivan v. United States, 10 Cir., 315 F.2d 304.
Appellant says that the present application should not have been denied without a hearing. The contention is without merit. As we pointed out in Sullivan, if the guilty plea was voluntary, the allegedly illegal conduct is no ground for relief under § 2255. In the prior § 2255 application we held that the guilty plea was made knowingly and voluntarily.
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_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.
The PEOPLE of the Territory of Guam, Plaintiff-Appellee, v. Carlos B. CEPEDA, Defendant-Appellant.
No. 87-1294.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 17, 1988.
Decided July 27, 1988.
Howard Trapp, Agana, Guam, for defendant-appellant.
Elizabeth Barrett-Anderson, Atty. Gen., Raymond T. Johnson II, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee.
Before GOODWIN, Chief Judge, and AL-DISERT and NORRIS, Circuit Judges.
Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation.
ALDISERT, Circuit Judge:
The major question for decision in this appeal from the Appellate Division of the District Court of Guam is whether the Superior Court of Guam’s improper admission into evidence of nonexpert opinion testimony constituted harmless error. Appellant Carlos Cepeda was indicted by a territorial grand jury on eight counts of theft, four counts of forgery, and one count of inducing false testimony. He was tried before the Superior Court of Guam and convicted by a jury on all counts. The trial court imposed an extended term of imprisonment of 20 years for the theft counts, to run concurrently with a six-month sentence for inducing false testimony and four four-year sentences for forgery. The Appellate Division of the District Court of Guam affirmed Cepeda’s convictions and sentence. We will reverse.
Jurisdiction in the Appellate Division was proper under 48 U.S.C. § 1424-3(a). Our jurisdiction on appeal is proper based on 48 U.S.C. § 1424-3(c). Cepeda timely filed his notice of appeal under Rule 4(b), Fed.R. App.P.
I.
Cepeda was employed as a loan officer by the Guam Economic Development Authority (GEDA) during 1982 and 1983. The jury found that he used this position to steal in excess of $36,000 of government funds. The government alleged that between June 19, 1982, and June 9, 1983, Cepeda obtained checks made out to various individuals and solicited Juan Cruz and others to cash the checks for him in exchange for $60 or $100. Eight checks were involved, each for an amount in excess of $1500. The government further alleged that on four separate occasions between September 25-30, 1983, Cepeda forged loan documents and used them to initiate processing of the GEDA checks. He was also accused of inducing Cruz to lie to investigators about who had given him the GEDA checks.
Under the Guam Code, the offense of theft is divided into various degrees. 9 Guam Code Ann. § 43.20(a)-(d). Theft constitutes a felony of the second degree if the amount involved exceeds $1500. Id. § 43.-20(a). “Theft not constituting a felony of the second or third degree or a misdemean- or is a petty misdemeanor.” Id. § 43.20(d). Title 8 Guam Code Ann. § 105.54 provides:
When a defendant is charged with a crime which is distinguishable by degrees, the jury shall, upon a finding of guilt, also find the degree of the crime of which the defendant is guilty. If the jury agrees upon the guilt of the defendant but cannot agree upon the degree, it shall render that verdict, and the defendant shall be deemed guilty of the lowest degree of the crime charged.
At trial, the jury was not requested to, nor did it determine, the degree of the eight counts of theft. The trial court’s special verdict slip did not require the jurors to determine whether the defendant was guilty of a felony, a misdemeanor, or a petty misdemeanor. However, the court pronounced sentence as if the jury returned a guilty verdict for second degree felony theft.
On appeal, Cepeda contends that the trial court improperly allowed a government witness to offer lay opinion evidence based on samples of Cepeda’s handwriting, when the samples were supplied to the witness by government subpoena for the purpose of testifying at trial. In addition, he argues that the maximum degree of theft for which he could be deemed guilty was a misdemeanor, that there was insufficient evidence to sustain a conviction for inducing false testimony, and that the court abused its discretion in imposing a 20-year sentence for property crimes constituting his first offenses.
II.
We will first address the handwriting evidence question. At trial, the government called Raymond Rojas as its witness to determine whether Cepeda forged the signature of certain persons on various GEDA “Request for Funds and Order to Pay” forms. To enable Rojas to make this determination, the government obtained, by subpoena, samples of Cepeda’s handwriting and then forwarded them to Rojas for use at trial. Rule 901(b)(2) of the Guam Rules of Evidence provides that an appropriate authentication or identification by a non-expert witness “as to the genuineness of handwriting [is admissible if] based upon familiarity not acquired for purposes of the litigation.” 6 Guam Code Ann. § 901(b)(2) (emphasis added). The trial court determined that Rojas did not qualify as an expert witness, but admitted his testimony as a nonexpert.
Whether Cepeda forged the signatures on the forms, a prelude to obtaining GEDA checks, was a critical issue in the forgery prosecutions. On the basis of the government’s direct examination of Rojas, the trial court, in its discretion, could have found him to be an expert witness in the area of handwriting analysis. But the trial court determined that Rojas was not a handwriting expert because “a high school graduate taking 80 hours of instructions, who testified in four grand jury cases, and no actual trials, certainly cannot qualify as an expert witness.” TT, vol. 2, at 133.
Rojas was an investigator for the forgery division of the Guam Department of Public Safety for approximately eleven years and had dealt primarily with questioned documents throughout his career. He received 80 hours of training from the Secret Service and the Federal Bureau of Investigation, and was the only police officer at the Department of Public Safety who was involved in document examination. He had applied his training in 300 separate instances involving questioned documents. During his testimony at trial, Rojas showed a thorough familiarity with and an ability to apply the basics of document examination: circumstances surrounding the writing, writing skill, handwriting format, letter sizes, upstrokes and downstrokes, and sketching. ER at 19-21; see E. Cleary, McCormick on Evidence § 221, at 689-91 (3d ed. 1984) (discussing authentication of writings through proof of handwriting).
Yet a trial court has wide discretion in determining whether a witness is qualified to testify as an expert. See United States v. Marabelles, 724 F.2d 1374, 1381 (9th Cir.1984); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1880). Here, the trial court was not impressed by Rojas’ experience during his tenure with the Department of Public Safety. The court also equated expertise with formal education and the number of times an individual has testified at trial.
The Appellate Division disagreed with the trial court’s determination as to Rojas’ lack of expert witness status, stating that “this court would have found Rojas to be an expert in handwriting analysis.” E.R. at 54. The Appellate Division, however, ruled that the court did not abuse its discretion on the qualifications issue. It did determine that the trial court committed error in allowing Rojas to offer his lay opinion into evidence, because Rojas had obtained his familiarity with Cepeda’s handwriting for the purpose of testifying at trial. It explained that Guam Rule of Evidence 901(b)(2) precludes nonexpert testimony as to the genuineness of handwriting if based on familiarity “acquired for purposes of the litigation.”
We agree that the trial court erred in interpreting Rule 901(b)(2) by admitting Rojas’ nonexpert testimony notwithstanding the manner in which he received the handwriting exemplars that formed the basis of his opinion. It is unquestioned that Rojas’ familiarity with Cepeda’s handwriting was in fact “acquired for purposes of the litigation.” Rojas obtained the handwriting exemplars by government subpoena (1) after the grand jury returned the indictment against the appellant, and (2) for the sole purpose of testifying at Cepe-da’s trial. Notwithstanding this clear violation of Rule 901(b)(2), however, the Appellate Division determined that the trial court’s error was harmless “in that it did not effect the ultimate outcome of the case.” E.R. at 55.
On appeal, Cepeda argues that the Appellate Division erred in ruling that Rojas’ nonexpert testimony was harmless error. The issue joined by the parties by brief and oral argument is clear, and allows us no leeway to consider other possibilities to validate the reception of the Rojas testimony. The litigants have presented solely a question of law: did the Appellate Division err in determining that the trial court’s error was harmless? We apply a de novo standard in reviewing interpretations of Guam law made by the Appellate Division of the District Court of Guam. Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc).
III.
Cepeda does not base his argument on the due process clause of the United States Constitution. He does not ask us to apply the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), even though it probably would have been more generous to him:
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), this Court rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman, “we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).
Rose v. Clark, 478 U.S. 570, 576-78, 106 S.Ct. 3101, 3104-06, 92 L.Ed.2d 460 (1986); see Satterwhite v. Texas, — U.S. —, —, 108 S.Ct. 1792, 1795-97, 100 L.Ed.2d 284 (1988). Rather, Cepeda adheres to the deep-rooted doctrine that a federal court will not pass on constitutional questions unless such adjudication is unavoidable. Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2682-83, 65 L.Ed.2d 784 (1980); Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). He relies on the teachings of United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir.1977), where we noted that “[ejrrors in such matters as ... rulings on the admissibility of evidence where Fourth Amendment claims are not involved ... have been considered ‘non-constitutional.’ ” In such cases, an appellate court must reverse the defendant’s conviction unless it is more probable than not that the error did not materially affect the verdict. Id.; see also 8 Guam Code Ann. § 130.50(a) (errors not affecting a substantial right of the party shall be disregarded).
In the case at bar, Cepeda did not confess to forging the forms, and he made no admission inferring that he did. No eyewitnesses testified that he forged the forms. Instead, the government linked Cepeda to the forgeries essentially through Rojas’ testimony:
Q Now is the analysis that you have made based solely on those individual characteristics which you have mentioned in Mr. Cepeda’s handwriting?
A Right.
Q And is there any doubt in your mind that it was he who wrote it?
THE WITNESS: That Mr. Cepeda did write these documents?
MR. PEREZ-SELSKY: The four documents in question, yes.
THE WITNESS: I have no doubt that Mr. Cepeda did write the documents.
ER at 22.
The Rojas testimony was, therefore, critical to the government’s forgery case against Cepeda. Other than opportunity to perform the illegal act and access to the GEDA forms, there was insufficient evidence linking him to the crime of forgery. Under these circumstances, we will not conclude that it was more probable than not that the Rojas testimony did not affect the jury’s verdict. Accordingly, we decide that the reception of Rojas’ opinion as a nonexpert witness was reversible, and not harmless, error, thereby entitling Cepeda to a new trial. As we are unable to conclude that this evidence did not influence the jury’s verdict on the other counts of the indictment, we will order a new trial on all counts. Lies v. Farrell Lines, Inc., 641 F.2d 765, 773-74 (9th Cir.1981) (appellate court has broad discretion to grant new trial on all or only some issues); see Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931).
IV.
Because we are ordering a new trial, we need not address Cepeda’s contentions as to the length of sentence and the alleged error in sentencing on a felony rather than a misdemeanor. Double jeopardy considerations, however, require that we address Cepeda’s remaining contention that he was entitled to a judgment of acquittal on the charge of inducing false testimony. The double jeopardy clause of the fifth amendment “protects against a second prosecution for the same offense after acquittal.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). If, in the first trial, Cepeda was entitled to a judgment of acquittal on the charge of inducing false testimony, the government is barred in the new trial from prosecuting him on the same charge. We conclude that the government is not so barred.
Cepeda argues that there was insufficient evidence to support the count charging a violation of 9 Guam Code Ann. § 52.50, which provides:
A person is guilty of a misdemeanor if he attempts to induce any person to give false testimony in or to withhold testimony from any official proceeding to which he has been or may be properly called as a witness, or to fail to attend any official proceeding to which he has been lawfully called as a witness.
The Appellate Division determined that there was sufficient evidence under Guam law to support the charge in the indictment. On appeal, our standard of review is de novo. Territory of Guam v. Yang, 850 F.2d 507 (9th Cir.1988) (en banc).
Sufficient evidence exists for a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see United States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986), cert. denied, — U.S. —, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). Reversal is required only when “no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. at 2788.
The grand jury’s indictment charged that between September 25-30,1983, Cepeda attempted to induce Juan Cruz to give false testimony regarding the receipt of GEDA checks in any official proceedings to which Cruz was called as a witness. ER at 4. At trial, Cruz testified that:
Carlos [Cepeda] came into my room and he took his wallet out. He was taking out a piece of paper which he took out from a newspaper, a picture. The picture was that of the late John Tuncap. He told me that in case someone asks about the checks, for me to say that it was Tuncap who has been giving me the checks.
TT, vol. 2, at 37-38. The question for decision is whether the words of this statement allow a rational trier of fact to conclude that Cruz was induced to give “false testimony in or to withhold testimony from any official proceeding” in which he was properly called as a witness.
In Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 118 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), the court stated:
Inferred factual conclusions based on circumstantial evidence are permitted only when, and to the extent that, human experience indicates a probability that certain consequences can and do follow from the basic circumstantial facts. The inferences that the court permits the jury to educe in a courtroom do not differ significantly from inferences that rational beings reach daily in informally accepting a probability or arriving at a conclusion when presented with some hard, or basic evidence. A court permits the jury to draw inferences because of this shared experience in human endeavors.
We have little difficulty in concluding that a reasonable jury could have inferred from Cruz’ statements that Cepeda attempted to induce Cruz to give false testimony to anyone inquiring about the origin of the GEDA checks — including individuals asking questions in official proceedings to which Cruz might be called as a witness. Viewing the evidence in the light most favorable to the government, Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, we agree with the Appellate Division that the government presented sufficient evidence to convict Cepeda under section 52.50 for inducing false testimony. Because Cepeda was not entitled to a judgment of acquittal, the government may properly prosecute him in the new trial on this charge.
V.
For the reasons set forth, we will reverse the judgment of the District Court of Guam, Appellate Division, and remand this cause with a direction that the proceedings be returned to the Superior Court of Guam for a new trial on all counts.
REVERSED.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
THORNBURGH, GOVERNOR OF PENNSYLVANIA, et al. v. AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS et al.
No. 84-495.
Argued November 5, 1985
Decided June 11, 1986
Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 772. Burger, C. J., filed a dissenting opinion, post, p. 782. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 785. O’Connor, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 814.
Andrew S. Gordon, Senior Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were LeRoy S. Zimmerman, Attorney General, and Allen C. Warshaw, Chief Deputy Attorney General.
Kathryn Kolbert argued the cause for appellees. With her on the brief was Thomas E. Zemaitis.
Briefs of amid curiae urging reversal were filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko; for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J. Uddo; for Watson D. Bowes, Jr., et al. by Steven Frederick McDowell; and for John D. Lane et al. by John E. McKeever.
Briefs of amici curiae urging affirmance were filed for the Attorney General of New York by Robert Abrams, Attorney General, pro se, Robert Hermann, Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General; for the American Civil Liberties Union et al. by Nan D. Hunter, Janet Benshoof and Suzanne M. Lynn; for the American Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National Abortion Federation by David I. Shapiro, Sidney Dickstein, Kenneth M. Simon, and Amy G. Applegate; for the National Abortion Rights Action League et al. by Lynn I. Miller; for the National Family Planning and Reproductive Health Association, Inc., by Robert T. Crothers; for the National Organization for Women et al. by Diane E. Thompson; and for the Planned Parenthood Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul.
Briefs of amici curiae were filed for the American Psychological Association by Donald N. Bersoff and Bruce J. Ennis; for the Women’s Lawyers’ Association of Los Angeles, California, et al. by Susan R. Schwartz, Carol Boyk, Judith Gordon, and Lorraine Loder; for the Unitarian Universalist Association et al. by Madeline Kochen; for Senator Bob Packwood et al. by Laurence H. Tribe and Kathleen M. Sullivan; for Susan Bandes et al. by Arthur Kinoy; and for Olivia Gans et al. by James Bopp, Jr.
Justice Blackmun
delivered the opinion of the Court.
This is an appeal from a judgment of the United States Court of Appeals for the Third Circuit reviewing the District Court’s rulings upon a motion for a preliminary injunction. The Court of Appeals held unconstitutional several provisions of Pennsylvania’s current Abortion Control Act, 1982 Pa. Laws, Act No. 138, now codified as 18 Pa. Cons. Stat. § 3201 et seq. (1982). Among the provisions ruled invalid by the Court of Appeals were portions of § 3205, relating to “informed consent”; §3208, concerning “printed information”; §§ 3210(b) and (c), having to do with postviability abortions; and § 3211(a) and §§ 3214(a) and (h), regarding reporting requirements.
I
The Abortion Control Act was approved by the Governor of the Commonwealth on June 11, 1982. By its own terms, however, see § 7 of the Act, it was to become effective only 180 days thereafter, that is, on the following December 8. It had been offered as an amendment to a pending bill to regulate paramilitary training.
The 1982 Act was not the Commonwealth’s first attempt, after this Court’s 1973 decisions in Roe v. Wade, 410 U. S. 113, and Doe v. Bolton, 410 U. S. 179, to impose abortion restraints. The State’s first post-1973 Abortion Control Act, 1974 Pa. Laws, Act No. 209, was passed in 1974 over the Governor’s veto. After extensive litigation, various provisions of the 1974 statute were ruled unconstitutional, including those relating to spousal or parental consent, to the choice of procedure for a postviability abortion, and to the proscription of abortion advertisements. See Planned Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975), summarily aff’d in part sub nom. Franklin v. Fitzgerald, 428 U. S. 901 (1976), and summarily vacated in part and remanded sub nom. Beal v. Franklin, 428 U. S. 901 (1976), modified on remand (No. 74-2440) (ED Pa. 1977), aff’d sub nom. Colautti v. Franklin, 439 U. S. 379 (1979). See also Doe v. Zimmerman, 405 F. Supp. 534 (MD Pa. 1975).
In 1978, the Pennsylvania Legislature attempted to restrict access to abortion by limiting medical-assistance funding for the procedure. 2 1978 Pa. Laws, Act No. 16A (pp. 1506-1507) and 1 1978 Pa. Laws, Act No. 148. This effort, too, was successfully challenged in federal court, Roe v. Casey, 464 F. Supp. 487 (ED Pa. 1978), and that judgment was affirmed by the Third Circuit. 623 F. 2d 829 (1980).
In 1981, abortion legislation was proposed in the Pennsylvania House as an amendment to a pending Senate bill to outlaw “tough-guy competitions.” The suggested amendment, aimed at limiting abortions, was patterned after a model statute developed by a Chicago-based, nonprofit anti-abortion organization. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick. L. Rev. 373, 382, n. 84 (1983). The bill underwent further change in the legislative process but, when passed, was vetoed by the Governor. See 737 F. 2d 283, 288-289 (CA3 1984). Finally, the 1982 Act was formulated, enacted, and approved.
After the passage of the Act, but before its effective date, the present litigation was instituted in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs, who are the appellees here, were the American College of Obstetricians and Gynecologists, Pennsylvania Section; certain physicians licensed in Pennsylvania; clergymen; an individual who purchases from a Pennsylvania insurer health-care and disability insurance extending to abortions; and Pennsylvania abortion counselors and providers. Alleging that the Act violated the United States Constitution, the plaintiffs, pursuant to 42 U. S. C. § 1983, sought declaratory and injunctive relief. The defendants named in the complaint were the Governor of the Commonwealth, other Commonwealth officials, and the District Attorney for Montgomery County, Pa.
The plaintiffs promptly filed a motion for a preliminary injunction. Forty-one affidavits accompanied the motion. The defendants, on their part, submitted what the Court of Appeals described as “an equally comprehensive opposing memorandum.” 737 F. 2d, at 289. The District Court then ordered the parties to submit a “stipulation of uncontested facts,” as authorized by local rule. The parties produced a stipulation “solely for purposes of a determination on plaintiffs’ motion for preliminary injunction,” and “without prejudice to any party’s right to controvert any facts or to prove any additional facts at any later proceeding in this action.” App. 9a-10a.
Relying substantially on the opinions of the respective Courts of Appeals in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F. 2d 1198 (CA6 1981), later aff’d in part and rev’d in part, 462 U. S. 416 (1983), and in Planned Parenthood Assn. of Kansas City v. Ashcroft, 655 F. 2d 848 (CA8 1981), later aff’d in part and rev’d in part, 462 U. S. 476 (1983), the District Court concluded that, with one exception, see n. 1, supra, the plaintiffs had failed to establish a likelihood of success on the merits and thus were not entitled to preliminary injunctive relief. 552 F. Supp. 791 (1982).
Appellees appealed from the denial of the preliminary injunction, and appellants cross-appealed with respect to the single statutory provision as to which the District Court had allowed relief. The Third Circuit then granted appellees’ motion to enjoin enforcement of the entire Act pending appeal. After expedited briefing and argument, the court withheld judgment pending the anticipated decisions by this Court in Akron, supra, Ashcroft, supra, and Simopoulos v. Commonwealth, 221 Va. 1059, 277 S. E. 2d 194 (1981), all of which had been accepted for review here, had been argued, and were under submission. Those three cases were decided by this Court on June 15, 1983. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416; Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476; Simopoulos v. Virginia, 462 U. S. 506. After reargument in light of those decisions, the Court of Appeals, with one judge concurring in part and dissenting in part, ruled that various provisions of the Act were unconstitutional. 737 F. 2d 283 (1984). Appellants’ petition for rehearing en banc was denied, with four judges voting to grant the petition. Id., at 316, 317. When a jurisdictional statement was filed here, we postponed further consideration of the question of our jurisdiction to the hearing on the merits. 471 U. S. 1014 (1985).
II
We are confronted initially with the question whether we have appellate jurisdiction in this ease. Appellants purport to have taken their appeal to this Court pursuant to 28 U. S. C. § 1254(2). It seems clear, and the parties appear to agree, see Brief for Appellants 21, that the judgment of the Court of Appeals was not a final judgment in the ordinary meaning of that term. The court did not hold the entire Act unconstitutional, but ruled, instead, that some provisions were invalid under Akron, Ashcroft, and Simopoulos, and that the validity of other provisions might depend on evidence adduced at the trial, see 737 F. 2d, at 299-300, or on procedural rules to be promulgated by the Supreme Court of Pennsylvania, see id., at 296-297. It remanded these features of the case to the District Court. Id., at 304.
Slaker v. O’Connor, 278 U. S. 188, 189-190 (1929), and McLish v. Roff 141 U. S. 661, 665-666 (1891), surely suggest that, under these circumstances, we do not have appellate jurisdiction. See also South Carolina Electric & Gas Co. v. Flemming, 351 U. S. 901 (1956). Although the authority of Slaker and South Carolina Electric has been questioned, the Court to date has found it unnecessary to put the issue to rest. See Doran v. Salem Inn, Inc., 422 U. S. 922, 927 (1975); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 43-44, n. 1 (1986). In some cases raising this issue of the scope of appellate jurisdiction, the Court has found any finality requirement to have been satisfied in light of the facts. See, e. g., New Orleans v. Dukes, 427 U. S. 297, 302 (1976); Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77, 82-83 (1958). In other cases, the Court has avoided the issue by utilizing 28 U. S. C. §2103 and granting certiorari. See, e. g., Doran, 422 U. S., at 927; El Paso v. Simmons, 379 U. S. 497, 503 (1965); see also Escambia County v. McMillan, 466 U. S. 48, 50, n. 4 (1984).
We have concluded that it is time that this undecided issue be resolved. We therefore hold, on the reasoning of McLish v. Roff, 141 U. S., at 665-668, that in a situation such as this one, where the judgment is not final, and where the case is remanded for further development of the facts, we have no appellate jurisdiction under § 1254(2).
We nevertheless treat appellants’ jurisdictional statement as a petition for certiorari, grant the writ, and move on to the merits.
Ill
Appellants assert that the Court of Appeals erred in holding portions of the Act unconstitutional since the scope of its review of the District Court’s denial of a preliminary injunction as to those sections should have been limited to determining whether the trial court abused its discretion in finding the presence or absence of irreparable harm and a probability that the plaintiffs would succeed on the merits. Such limited review normally is appropriate, see Doran v. Salem Inn, Inc., 422 U. S., at 931-932; Brown v. Chote, 411 U. S. 452, 456-457 (1973), inasmuch as the primary purpose of a preliminary injunction is to preserve the relative positions of the parties. See University of Texas v. Camenisch, 451 U. S. 390, 395 (1981). Further, the necessity for an expeditious resolution often means that the injunction is issued on a procedure less stringent than that which prevails at the subsequent trial on the merits of the application for injunctive relief. See United States Steel Corp. v. Fraternal Assn. of Steelhaulers, 431 F. 2d 1046, 1048 (CA3 1970); see also Mayo v. Lakeland Highlands Canning Co., 309 U. S. 310, 316 (1940).
This approach, however, is not inflexible. The Court on more than one occasion in this area has approved proceedings deviating from the stated norm. In Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the District Court had issued a preliminary injunction restraining the Secretary of Commerce from seizing the Nation’s steel mills. The Court of Appeals stayed the injunction. This Court found that the case was ripe for review, despite the early stage of the litigation, and went on to address the merits. Id., at 585. And in Smith v. Vulcan Iron Works, 165 U. S. 518 (1897), the District Court issued injunctions in two patent cases and referred them to a Master for accounting. The Court of Appeals reversed. This Court ruled that the Court of Appeals had acted properly in deciding the merits since review of interlocutory appeals was designed not only to permit the defendant to obtain immediate relief but also in certain cases to save the parties the expense of further litigation. Id., at 525.
The Third Circuit’s decision to address the constitutionality of the Pennsylvania Act finds further support in this Court’s decisions that when the unconstitutionality of the particular state action under challenge is clear, a federal court need not abstain from addressing the constitutional issue pending state-court review. See, e. g., Bailey v. Patterson, 369 U. S. 31, 33 (1962); Turner v. City of Memphis, 369 U. S. 350, 353 (1962); Zwickler v. Koota, 389 U. S. 241, 251, n. 14 (1967). See also Singleton v. Wulff 428 U. S. 106, 121 (1976). See generally Spann, Simple Justice, 73 Geo. L. J. 1041, 1055, n. 77 (1985).
Thus, as these cases indicate, if a district court’s ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. The Court of Appeals in this case properly recognized and applied these principles when it observed:
“Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a District Court’s ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law.” 737 F. 2d, at 290.
That a court of appeals ordinarily will limit its review in a case of this kind to abuse of discretion is a rule of orderly judicial administration, not a limit on judicial power. With a full record before it on the issues now before us, and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues.
IV
This case, as it comes to us, concerns the constitutionality of six provisions of the Pennsylvania Act that the Court of Appeals struck down as facially invalid: §3205 (“informed consent”); §3208 (“printed information”); §§ 3214(a) and (h) (reporting requirements); § 3211(a) (determination of viability); § 3210(b) (degree of care required in postviability abortions); and § 3210(c) (second-physician requirement). We have no reason to address the validity of the other sections of the Act challenged in the District Court.
A
Less than three years ago, this Court, in Akron, Ashcroft, and Simopoulos, reviewed challenges to state and municipal legislation regulating the performance of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade, 410 U. S. 113 (1973). See 462 U. S., at 420, 426-431. Again today, we reaffirm the general principles laid down in Roe and in Akron.
In the years since this Court’s decision in Roe, States and municipalities have adopted a number of measures seemingly designed to prevent a woman, with the advice of her physician, from exercising her freedom of choice. Akron is but one example. But the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman’s right to decide whether to end her pregnancy. “[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Brown v. Board of Education, 349 U. S. 294, 300 (1955). The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. Appellants claim that the statutory provisions before us today further legitimate compelling interests of the Commonwealth. Close analysis of those provisions, however, shows that they wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make.
B
We turn to the challenged statutes:
1. Section 3205 (“informed consent”) and § 3208 (“printed information”). Section 3205(a) requires that the woman give her “voluntary and informed consent” to an abortion. Failure to observe the provisions of § 3205 subjects the physician to suspension or revocation of his license, and subjects any other person obligated to provide information relating to informed consent to criminal penalties. § 3205(c). A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional. See Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 67 (1976). But the State may not require the delivery of information designed “to influence the woman’s informed choice between abortion or childbirth.” Akron, 462 U. S., at 443-444.
Appellants refer to the Akron ordinance, Brief for Appellants 67, as did this Court in Akron itself, 462 U. S., at 445, as “a litany of information” and as “ ‘a parade of horribles’ ” of dubious validity plainly designed to influence the woman’s choice. They would distinguish the Akron situation, however, from the Pennsylvania one. Appellants assert that statutes “describing the general subject matter relevant to informed consent,” ibid., and stating “in general terms the information to be disclosed,” id., at 447, are permissible, and they further assert that the Pennsylvania statutes do no more than that.
We do not agree. We conclude that, like Akron’s ordinance, §§3205 and 3208 fail the Akron measurement. The two sections prescribe in detail the method for securing “informed consent.” Seven explicit kinds of information must be delivered to the woman at least 24 hours before her consent is given, and five of these must be presented by the woman’s physician. The five are: (a) the name of the physician who will perform the abortion, (b) the “fact that there may be detrimental physical and psychological effects which are not accurately foreseeable,” (c) the “particular medical risks associated with the particular abortion procedure to be employed,” (d) the probable gestational age, and (e) the “medical risks associated with carrying her child to term.” The remaining two categories are (f) the “fact that medical assistance benefits may be available for prenatal care, childbirth and neonatal care,” and (g) the “fact that the father is liable to assist” in the child’s support, “even in instances where the father has offered to pay for the abortion.” § § 3205(a)(1) and (2). The woman also must be informed that materials printed and supplied by the Commonwealth that describe the fetus and that list agencies offering alternatives to abortion are available for her review. If she chooses to review the materials but is unable to read, the materials “shall be read to her,” and any answer she seeks must be “provided her in her own language.” § 3205(a)(2)(iii). She must certify in writing, prior to the abortion, that all this has been done. § 3205(a)(3). The printed materials “shall include the following statement”:
“ ‘There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.’” § 3208(a)(1).
The materials must describe the “probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child’s survival.” § 3208(a)(2).
In Akron, this Court noted: “The validity of an informed consent requirement thus rests on the State’s interest in protecting the health of the pregnant woman.” 462 U. S., at 443. The Court went on to state:
“This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth’s recognition of the State’s interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman’s informed choice between abortion or childbirth.” Id., at 443-444.
The informational requirements in the Akron ordinance were invalid for two “equally decisive” reasons. Id., at 445. The first was that “much of the information required is designed not to inform the woman’s consent but rather to persuade her to withhold it altogether.” Id., at 444. The second was that a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman’s physician and thereby imposes the “undesired and uncomfortable straitjacket” with which the Court in Danforth, 428 U. S., at 67, n. 8, was concerned.
These two reasons apply with equal and controlling force to the specific and intrusive informational prescriptions of the Pennsylvania statutes. The printed materials required by §§3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth’s message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly over inclusive. This is not medical information that is always relevant to the woman’s decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice. Even the listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. See Women’s Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1154 (RI 1982). All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures — as it obviously was intended to do— the dialogue between the woman and her physician.
The requirements of §§ 3205(a)(2)(i) and (ii) that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this would be nonmedical information beyond the physician’s area of expertise and, for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the “information” in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest.
The requirements of §§3205(a)(l)(ii) and (iii) that the woman be informed by the physician of “detrimental physical and psychological effects” and of all “particular medical risks” compound the problem of medical attendance, increase the patient’s anxiety, and intrude upon the physician’s exercise of proper professional judgment. This type of compelled information is the antithesis of informed consent. That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose. Pennsylvania, like Akron, “has gone far beyond merely describing the general subject matter relevant to informed consent.” Akron, 462 U. S., at 445. In addition, the Commonwealth would require the physician to recite its litany “regardless of whether in his judgment the information is relevant to [the patient’s] personal decision.” Ibid. These statutory defects cannot be saved by any facts that might be forthcoming at a subsequent hearing. Section 3205’s informational requirements therefore are facially unconstitutional.
Appellants assert, however, that even if this be so, the remedy is to allow the remainder of § 3205 to be severed and become effective. We rule otherwise. The radical dissection necessary for this would leave § 3205 with little resemblance to that intended by the Pennsylvania Legislature. We rejected a similar suggestion as to the ordinance in Akron, 462 U.S, at 445, n. 37, despite the presence there of a broad severability clause. We reach the same conclusion here, where no such clause is present, and reject the plea for severance. See Carter v. Carter Coal Co., 298 U. S. 238, 312-313 (1936).
2. Sections 3214(a) and (h) (reporting) and § 3211(a) (determination of viability). Section 3214(a)(8), part of the general reporting section, incorporates § 3211(a). Section 3211(a) requires the physician to report the basis for his determination “that a child is not viable.” It applies only after the first trimester. The report required by §§ 3214(a) and (h) is detailed and must include, among other things, identification of the performing and referring physicians and of the facility or agency; information as to the woman’s political subdivision and State of residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age; the basis for any judgment that a medical emergency existed; the basis for any determination of nonviability; and the method of payment for the abortion. The report is to be signed by the attending physician. § 3214(b).
Despite the fact that § 3214(e)(2) provides that such reports “shall not be deemed public records,” within the meaning of the Commonwealth’s “Right-to-Know Law,” Pa. Stat. Ann., Tit. 65, §66.1 et seq. (Purdon 1959 and Supp. 1985), each report “shall be made available for public inspection and copying within 15 days of receipt in a form which will not lead to the disclosure of the identity of any person filing a report.” Similarly, the report of complications, required by § 3214(h), “shall be open to public inspection and copying.” A willful failure to file a report required under §3214 is “unprofessional conduct” and the noncomplying physician’s license “shall be subject to suspension or revocation.” §3214(i)(l).
The scope of the information required and its availability to the public belie any assertions by the Commonwealth that it is advancing any legitimate interest. In Planned Parent hood of Central Missouri. v. Danforth, 428 U. S., at 80, we recognized that recordkeeping and reporting provisions “that are reasonably directed to the preservation of maternal health and that properly respect a patient’s confidentiality and privacy are permissible.” But the reports required under the Act before us today go well beyond the health-related interests that served to justify the Missouri reports under consideration in Danforth. Pennsylvania would require, as Missouri did not, information as to method of payment, as to the woman’s personal history, and as to the bases for medical judgments. The Missouri reports were to be used “only for
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_caseorigin
|
031
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
CONSOLIDATED RAIL CORPORATION et al. v. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., et al.
No. 80-568.
Decided January 26, 1981
Per Curiam.
Section 204 of the Railroad Revitalization and Regulatory-Reform Act of 1976, Pub. L. 94-210, 90 Stat. 40, note following 45 U. S. C. § 793, directed the Interstate Commerce Commission to conduct an investigation to determine whether the rail rate structure for recyclable and competing virgin materials unjustly discriminates against recyclables or whether such rates are unreasonable, and, if found to be so, to require the removal of any such defect from the structure. The Act demonstrated congressional concern that rail rates may have been unjustly impeding the movement of recycled materials in a market of diminishing virgin resources. S. Rep. No. 94-499, p. 51 (1975).
After conducting the investigation required by §§204 (a) (1) and (2), the Commission concluded that the rail rate structure was neither discriminatory with respect to recyclable materials, nor, with few exceptions, unreasonable. Investigation of Freight Rates for the Transportation of Recyclable or Recycled Commodities, 356 I. C. C. 114 (1977). The Court of Appeals for the District of Columbia Circuit reversed, finding that the Commission had applied an overly restrictive definition of “competitive” in assessing whether particular commodities were comparable for purposes of determining discrimination, and that the Commission had improperly shifted the burden of proof from the railroads. National Association of Recycling Industries, Inc. v. ICC, 190 U. S. App. D. C. 118, 585 F. 2d 522 (1978). The case was remanded with orders to the Commission to conduct an expedited investigation which would remedy these errors.
On remand, the Commission found that certain recyclable materials were being discriminated against in the rate structure and concluded that, in general, rates for transportation of recyclables were unreasonably high if they produced a revenue-to-variable cost ratio exceeding 180%. The Commission ordered the elimination of all rate discrimination and ordered that rates for recyclable materials which produced revenue in excess of the 180% ratio be reduced accordingly. Investigation of Freight Rates for Transportation of Recyclable or Recycled Commodities, 361 I. C. C. 238 (1979). In eliminating the discrimination, the railroads were free to use any combination of raising or lowering rates which would equalize rates for recyclable and competing virgin materials, so long as the resulting rate would not be unreasonable. Investigation of Freight Rates for Transportation of Recyclable or Recycled Commodities, 361 I. C. C. 641 (1979). Under this approach, the railroads could raise the rates for recyclable material and competing virgin material to a level above the previous levels for either commodity, if the new rate did not produce revenue in excess of the 180% ratio.
The Court of Appeals affirmed with respect to the Commission’s findings on discrimination. National Association of Recycling Industries, Inc. v. ICC, 201 U. S. App. D. C. 342, 627 F. 2d 1328 (1980). However, the court found fault with the scope of the Commission’s remedy for eliminating discrimination and with the Commission’s failure adequately to justify the 180% ratio as indicative of reasonableness. The court revoked all rate increases for recyclable material put into effect pursuant to those perceived errors and remanded for further proceedings. In a supplementary order, the court made it clear that the central task on remand would be to determine whether the 180% ratio, or some other formula, provided the appropriate standard for determining reasonableness. Until such a standard had been adequately justified, the court enjoined implementation of any rate increase for recyclable material, excepting one caused by a general rate increase.
The railroads sought certiorari, challenging only those aspects of the Court of Appeals’ decision which revoked or enjoined rate increases. The argument is that the lower court was without authority to enter such orders. We agree. The authority to determine when any particular rate should be implemented is a matter which Congress has placed squarely in the hands of the Commission. Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658, 662-672 (1963). While the Court of Appeals was not without power to order further proceedings to determine the propriety of the 180% ratio standard, the court stepped beyond the proper exercise of its power when it revoked rates implemented under the standard and enjoined any further increases toward the 180% level. The basis for these remedies was the court’s conclusion that the Commission had failed to adequately support the choice of the 180% figure. That standard was not rejected outright; the court’s opinion leaves open the possibility that the 180% ratio may eventually prevail.
Under the above circumstances, there is no basis in our prior decisions for the revocation order or for the injunction against further increases. “If a reviewing court cannot discern [the Commission’s] policies, it may remand the case to the agency for clarification and further justification of the departure from precedent. . . . When a case is remanded on the ground that the agency’s policies are unclear, an injunction ordinarily interferes with the primary jurisdiction of the Commission.” Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U. S. 800, 822 (1973); see United States v. SCRAP, 412 U. S. 669, 690-698 (1973); Arrow Transportation Co. v. Southern R. Co., supra; see also Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444 (1979). Here, the court was dissatisfied with the Commission’s justification for adopting the 180% standard, and the case was remanded for further proceedings which could either produce a new standard or clarify the basis for the 180% ratio. Such a posture provides no basis for either revoking or enjoining rate increases under the above authorities. Accordingly, the petition for a writ of certiorari is granted, those portions of the Court of Appeals decision revoking or enjoining rate increases are vacated, and the case is remanded for proceedings consistent with the immediate disposition.
So ordered.
Justice Powell took no part in the consideration or decision of this case.
On October 14, 1980, the President signed into law the Staggers Rail Act of 1980, Pub. L. 96-448, 94 Stat. 1895. Section 204 of the Act amends 49 U. S. C. § 10731 (1976 ed, Supp. III) so as to provide guidelines under which the Commission must develop a new revenue-to-variable cost standard for all reeydables excepting iron and steel scrap. Congress has estimated that that ratio would not exceed 160%. S. Rep. No. 96-470, p. 34 (1979). Although the Act may result in the Commission’s adoption of a standard lower than 180%, that factor has no bearing on the Court of Appeals’ power to revoke or enjoin the rate increases at issue here.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
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
212. United States Supreme Court
Answer:
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songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal 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.
MOORE v. MEAD SERVICE CO. et al.
No. 4055.
United States Court of Appeals Tenth Circuit.
June 26, 1951.
Rehearing Denied July 27, 1951.
Dee C. Blythe, Clovis, N. M., for appellant.
Edward W. Napier, Lubbock, Tex. (Howard F. Houle, Santa Fe, N. M., was with him on the brief), for appellees.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
This action was brought to recover statutory treble damages alleged to have been incurred by reason of the defendant’s violation of the Clayton Act as amended by the Robinson-Patman Price Discrimination Act of 1936, 15 U.S.C.A. §§ 13(a), 15. At the conclusion of plaintiffs evidence, the trial court dismissed the complaint and entered judgment for the defendant for the reason that the evidence showed that the alleged price discrimination was in response to changing conditions affecting the market for or the marketability of goods concerned which was permitted under the last proviso of Sec. 13(a). Upon former consideration of the case, we affirmed upon the grounds that the plaintiff, by his own conduct and participation in an illegal boycott, had created a condition which resulted in the price discrimination complained of and for that reason could not maintain the action. 10 Cir., 184 F.2d 338. Upon petition for certiorari, 340 U.S. 944, 71 S.Ct. 528, the Supreme Court remanded the case with directions that it be given further consideration in the light of Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211, 71 S.Ct. 259. Although the facts in the Kiefer case were substantially different from those here, it was there held that in an action for treble damages under the Sherman Act, 15 U.S.C.A. §§ 1, 15, infractions of such law by the claimant were not a defense in such an action. We therefore conclude that the Kiefer case controls on this point.
Moore operated the only bakery in the town of Santa Rosa, New Mexico. At the same time, Mead’s Fine Bread Company, a corporation, had a similar business in Clovis, New Mexico, and was selling its product in Santa Rosa in competition with Moore and through substantially the same outlets. By selling its product through other outlets across the state line in Texas, it was engaged in interstate commerce. In order to retain Moore’s bakery in Santa Rosa, with the consent and acceptance of Moore, a group of business men there obtained the written assurance from all of the retail outlets, except one, that they would not purchase bread from anyone except Moore. This understanding was to become effective on September 3, 1948. Upon that date Mead reduced the price of a one pound loaf of white bread from 140 to 70 and a one and one-half pound loaf from 210 to 110 which was substantially below cost. As a result of this reduction, most of the retailers continued the sale of Mead’s bread. Mead did not reduce the price of its product at any place except Santa Rosa, and maintained these prices until after this action was brought.
The Act makes it unlawful for a person engaged in interstate commerce, either directly or indirectly, to discriminate in price between purchases of commodities of like grade and quality where such commodities are sold for use, consumption or resale and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce or to injure, destroy or prevent competition with any person who either grants or knowingly receives benefit of such discrimination. The section contains this proviso: “nothing contained in sections 12, 13, 14-21 and 22-27 of this title shall prevent price changes from time to time where in response to changing conditions, affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.” The trial court thought that because of the boycott, Mead was confronted with a changed market condition which would bring it within this proviso. It appears to us that the proviso cannot be given such a broad meaning. It is evident that it deals with special situations in connection with specific lots of goods which are of a perishable nature or become obsolete with the seasons or distress sales under court process or goods sold when a business is discontinued in good faith. The exceptions are not confined specifically to those set forth but the plain language of the statute limits the exceptions to those which are “such as” or similar to those named. The changed market condition caused by the understanding of the retailers in Santa Rosa to purchase only Moore’s bread is not “such as” or similar to' the exceptions named.
A price discrimination having been shown, it then, under the statute, becomes a question of fact as to whether “the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with the customers of either of them.” 15 U.S.C.A. § 13(a).
Judgment is reversed and the cause remanded for new trial.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_respond1_1_4
|
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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRANKLIN ART GLASS STUDIOS, INC., Respondent.
No. 80-1626.
United States Court of Appeals, Sixth Circuit.
Argued March 3, 1982.
Decided March 29, 1982.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Emil C. Farkas, Paul Spielberg, Cincinnati, Ohio, for petitioner. .
Roger L. Sabo, Knepper, White, Arter & Hadden, Columbus, Ohio, for respondent.
Before KENNEDY and MARTIN, Circuit Judges, and MARKEY, Chief Judge.
The Honorable Howard T. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation.
ORDER
The Board seeks enforcement of its order against Franklin Art Glass Studios, Inc., reported at 250 N.L.R.B. No. 95. The Board found that Franklin had violated section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by refusing to bargain with the Union, the United Glass and Ceramic Workers of North America, AFL-CIO-CLC. Franklin admits that it refused to bargain but complains that it is entitled to a hearing on certain challenged votes at the consent election. The Board found that no hearing was required as to three of the challenged ballots. With these and other challenged ballots included the Union received a majority of all votes cast.
We agree with the Board that no hearing was necessary regarding the three challenged ballots. Based upon the undisputed facts, the Board was entitled to conclude that the two laid-off employees casting these ballots and the one employee on sick leave due to a work-related injury had a reasonable expectation of being recalled.
Franklin also argues that the Union’s failure to sign a settlement agreement to which it had orally agreed is so egregious that certification should be denied. The Union agreed to drop certain unfair labor practice charges if the company would drop its exceptions to the Director’s report. However, before the Union assented in writing, the Board rejected Franklin’s exceptions to the Director’s report. The Union thereafter refused to sign or comply with the agreement. Pointing out that private settlements to which the Board is not a party are not binding on the Board, the Board found the settlement agreement to be immaterial. Since under the terms of the settlement agreement the certification would have remained valid and in effect, we agree that the settlement agreement is immaterial to the issues here.
Accordingly, it is ORDERED that the order of the Board be and hereby is enforced.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_casetyp1_1-3-1
|
Q
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
Ralph MAHONEY, Appellant, v. UNITED STATES of America, Appellee.
No. 21944.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 11, 1969.
Decided Dec. 15, 1969.
Mr. J. P. Janetatos, Washington, D. C., with whom Mr. Philip A. Ryan, Washington, D. C. (both appointed by this court) was on the brief, for appellant.
Mr. John G. Gill, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief for appellee. Mr. David G. Bress, U. S. Atty. at the time the record was filed, and Mr. John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.
Before TAMM, LEVENTHAL and ROBB, Circuit Judges.
ROBB, Circuit Judge:
The appellant was convicted of unauthorized use of a motor vehicle in violation of 22 D.C. Code § 2204. At trial the case for the government was that on February 14, 1967 the appellant wrongfully appropriated and drove an automobile, was observed and pursued by the police at a high rate of speed, and was arrested after he abandoned the automobile and fled to the roof of a nearby apartment house. A police officer identified the appellant as the driver of the car and there was evidence that when arrested he had in his pocket the key to a telephone that was part of the car’s equipment. On the other hand the appellant denied that he had been in the car or had anything to do with it, or ever had the key in his possession, and he undertook to explain his presence on the roof of the apartment house. The appellant’s trial in the District Court took place on January 17 and 18, 1968.
Counsel for the appellant tells us that prior to his trial in the District Court the appellant was tried and acquitted in the Court of General Sessions on charges of reckless driving and speeding (D.C. Code § 40-605), and driving a motor vehicle after his permit had been suspended (D.C. Code § 40-489). Counsel states that these charges were based upon the alleged operation by the appellant on February 14, 1967 of the same automobile referred to in the indictment in the case before us, and that the only contested issue before the Court of General Sessions was whether the appellant was the driver of that automobile.. Counsel argues that the prosecution in the District Court was thus barred by the rule of collateral estoppel. A short statement of this rule as applied to criminal cases is that when a question of fact essential to the judgment is litigated and determined in a criminal prosecution, the determination is conclusive between the parties in any subsequent prosecution, although the offenses be different. Seal-fon v. United States, 332 U.S. 575, 68 S. Ct. 237, 92 L.Ed. 180 (1948); Hoag v. New Jersey, 356 U.S. 464, 470, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958); Laughlin v. United States, 120 U.S.App.D.C. 93, 344 F.2d 187 (1965); United States v. Kramer, 289 F.2d 909 (2d Cir. 1961); United States v. DeAngelo, 138 F.2d 466 (3d Cir. 1943); People v. Cornier, 42 Misc.2d 963, 249 N.Y.S.2d 521 (Sup.Ct. 1964); cf. Moore v. United States, 120 U.S.App. D.C. 173, 344 F.2d 558 (1965); see Annot., 9 A.L.R.3d 203 (1966). Applying the rule to the facts of this ease, it is argued that the ruling of the Court of General Sessions was a conclusive determination that the appellant was not the operator of the motor vehicle in question and the judgment was therefore a bar to the subsequent prosecution for the unauthorized use of that vehicle.
(2] We find it unnecessary to consider the appellant’s argument. His contention is made for the first time in this Court. In the District Court he did not mention the judgment of the Court of General Sessions or even intimate to the district judge that the case might present a question of collateral estoppel. This was so, notwithstanding the fact that the appellant was represented in the Court of General Sessions and in the District Court by the same attorney. Under these circumstances we must decline to explore the point on this appeal. Had the matter been brought to the attention of the district judge he would have examined the record in the Court of General Sessions to determine whether it supported the defense of collateral estoppel. It is not the function of this Court, however, to make such an inquiry in an endeavor to establish facts which should have been developed in the District Court. United States v. Friedland, 391 F.2d 378 (2d Cir. 1968); 1 C.A. Wright, Federal Practice & Procedure § 193 (1969). Indeed, it has been held that even the defense of double jeopardy, a constitutional point, is waived unless raised in the District Court. Haddad v. United States, 349 F.2d 511 (9th Cir.), cert. den. 382 U.S. 896, 86 S.Ct. 193, 15 L.Ed.2d 153 (1965).
The appellant contends also that the district judge abused his discretion in denying a continuance. The argument has no merit. The record discloses that the appellant’s motion for continuance was made for the first time on the day of trial, January 17, 1968, upon the ground that “if he had a month’s continuance * * * he might possibly be able to find a witness in New Jersey.” The appellant had been free on personal recognizance since March 10, 1967 and had been represented by counsel since May 18, 1967. There was no showing of diligence in seeking out the witness. The matter of a continuance was within the discretion of the district judge and plainly he did not abuse that discretion. Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375 (1941).
The judgment of the District Court is affirmed.
. Not counsel on this appeal.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_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.
Clyde L. HARDY and Lee Roy Ferguson, Appellants, v. UNITED STATES of America, Appellee.
No. 20183.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 14. 1966.
Decided June 19, 1967.
Petition for Rehearing En Banc Denied Oct. 4, 1967.
Mr. Carl V. Lyon, Washington, D. C. (appointed by this court), with whom Mr. Edward G. Howard, Washington, D. C., was on the brief, for appellants.
Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Fahy and Tamm, Circuit Judges.
Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967.
TAMM, Circuit Judge.
This court is again asked to reverse the narcotics laws convictions of these two appellants. This sought after relief is denied.
These appellants were convicted by a jury on a multiple count indictment charging violations of the narcotics laws in a trial conducted by a judge of this court sitting pursuant to 28 U.S.C. § 291(c) (1949), as amended, (Supp. I, 1966), as a District Court judge. They appealed to this court, alleging as a ground for their appeal that their right to a fair trial had been violated by a delay of approximately seven and one-half months between the time of the offenses with which they were charged and their arrests.
On August 20, 1964, a duly constituted panel of this court affirmed their convictions, Hardy & (Ferguson) v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233. That panel, in its carefully considered opinion, concluded that “[t]he delay between alleged act and arrest was not oppressive and the delay between arrest and trial did not violate appellants’ Sixth Amendment rights. Smith v. United States, 1964,118 U.S.App.D.C. 38, 331 F.2d 784 (en banc); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963).” Subsequently, all of the judges of this court considered the appellants’ contentions on this point, and on December 18, 1964, denied appellants’ petitions for rehearing. Certiorari was denied by the Supreme Court on April 26, 1966, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276. Normally and logically this should have terminated the appellate procedure available to these appellants upon the point raised and considered in their initial direct appeal. In June of 1965, however, we considered the case of Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210. In that case, the appellant’s narcotics conviction was reversed. The court, after balancing the interests presented on the record, decided to order a new trial in exercise of “our supervisory responsibility.” That was because Ross had not been arrested until after a purposeful seven months delay following the date when, as an undercover police officer testified without corroboration, he had purchased narcotics from the accused. The panel of this court which considered Ross affirmatively compared it with our earlier opinion involving our-present appellants and readily distinguished the Ross case from that of the present appellants by setting forth in footnote 4 of the cited Ross opinion that “Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government.”
On January 4, 1966, our appellants here filed a motion in the United States District Court pursuant to section 2255 requesting the District Court to vacate and set aside their sentences, again asserting that their sentences were illegal because of an unreasonable delay between their offenses and arrests — which was the ground for their initial appeal to this court — and placing reliance upon our holding in Ross v. United States, swpra, which opinion had, as noted above, been rendered subsequent to the original convictions and appeals. Again, the judge of this court who had originally conducted the trial of the appellants considered their motion and denied it, stating, “ * * * on a full evidentiary record, with the issue of delay in prosecution fully raised, the Court of Appeals affirmed the convictions. Under the circumstances, the motion and the files and records of this case show that the motion must be denied.” Our present appeal stems from that denial.
The appellants are currently barred from collaterally attacking their convictions, because the precise issue now raised was fully raised on their direct appeals and disposed of adversely to them. It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), cert, denied, 368 U.S. 958, 82 S.Ct. 400, 7 L.Ed.2d 389 (1962); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1955), cert, denied, 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762 (1957); VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965); Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Frye v. United States, 337 F.2d 385 (7th Cir. 1964), cert, denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). This point in itself should be completely dispositive of the appeal in this ease, but my learned brother by his dissenting opinion brings into this case factors which require further comment.
Basically, the dissenting opinion proposes that the present panel of this court overrule the prior panel which heard and disposed of the appeal of these appellants on its merit. Obviously, no panel of the court has any right whatsoever to overrule the holdings of another panel of the court. To engage in this process is to bring chaos to the court’s rulings. Were the court to follow this procedure, the decisions of each panel would be valid only on the day of the issuance, and the resulting confusion would obviously destroy the entire value of appellate proceedings.
In addition, however, the dissenting opinion suggests that our present panel surmise that the panel which decided the Ross case, supra, did not mean what it said when it, in turn, was interpreting the facts in the Hardy case.
Another aspect of the dissenting opinion which causes me concern is that it is predicated upon that writer’s rejection of the trial jury’s evaluation of the credibility of witnesses and formulates judicial policy upon the basis of the appellate judge’s own evaluation of that testimony. Without having seen or heard the testimony of the witnesses, the dissenting judge concludes that some of the testimony has “questionable significance.” Indicative of the reliance upon surmise utilized to strengthen the dissenting opinion is the repetitive use of selected conclusionary phrases describing the evidence in the case as “covered with haze,” “apparently * * * not even clear,” “hectic,” etc. The dissenting opinion states that “probably” the police officer’s service on the street “was a very strained and tense period — a clandestine life made more oppressive by constant fear of exposure and perhaps death.” He would then frankly overrule the jury’s on-the-scene evaluation of the credibility of the police officer and the informer and remand for a further hearing on the question of delay. Finally, he concludes by saying that his “confidence * * * is shattered by other facets of this case which indicate that the police took only scanty precautions to insure that they picked the right defendants”, etc.
Words are completely inadequate to emphasize the error of predicating appellate judicial action upon this kind of second-guessing of a jury.
Troublesome also is a further collateral problem underlined by the action proposed in the opinion of my dissenting brother. Although this court has gone far beyond the limits of many other appellate courts in assuring to appellants in criminal cases complete and exacting reviews of their convictions, there must— as a matter not only of logic but of sound judicial administration — be some point of termination in the appellate procedure. Were this panel to ignore all judicial precedent and overrule not one but two prior panels of the court, it would, in effect, be by judicial fiat extending the ever-lengthening processes which constitute Perpetual Appeals. It is popular now to publicly decry the huge backlog of criminal cases awaiting trial in our District Court, and yet the procedure proposed in the dissenting opinion would add to the burden of our trial court the necessity for conducting further hearings in this ease and, I suppose, similar cases. True it is, that this court’s basic responsibility is from time to time to remand individual cases to the District Court for further proceedings. These remands, as a matter of law, of sound judicial administration, and of simple efficiency, should be confined to those meritorious cases in which there exists some unresolved substantial question of law or fact. The questions of law and fact raised by the appellants’ present appeal have been resolved against them heretofore by a judge of this court sitting as a trial judge, by a panel of this court sitting in appellate review of the trial court proceedings, by the court considering the case en banc, by at least a basic review by the Supreme Court, as manifested by that Court’s denial of certiorari, and finally by a second panel of this court in distinguishing appellants’ case from that of the defendant Ross, heretofore identified. It does not require the services of efficiency experts, management surveys, or administrative studies to discover that in a case such as this the court is figuratively spinning its wheels by making no forward progress in dealing with the Judiciary’s serious problems of congestion.
Affirmed.
. “Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction, requires in our view, the reversal of this conviction.” Ross, supra, 121 U.S.App.D.C. at 239, 349 F.2d at 216.
. 28 U.S.C. § 2255 (1959).
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant.
EARL W. BAKER & CO. et al. v. LAGALY.
No. 2900.
Circuit Court of Appeals, Tenth Circuit.
Aug. 14, 1944.
Mart Brown, of Oklahoma City, Okl. (Ames, Monnet, Hayes & Brown, of Oklahoma City, Okl., on the brief), for appellant Earl W. Baker & Co.
Draper Grigsby and Ben Franklin, both of Oklahoma City, Okl. (Cruce, Satterfield & Grigsby, of Oklahoma City, Okl., on the brief), for appellant Truck Insurance Exchange of Los Angeles, Cal.
James Rinehart, of El Reno, Okl. (Rinehart & Welden, of El Reno, Okl., on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
Truck Insurance Exchange, of Los Angeles, California, issued and delivered its contract of liability insurance covering a bus owned and operated by Consolidated School District 57, Canadian County, Oklahoma, in the transportation of school children to and from the school at Union City, Oklahoma. Patrick F. Lagaly attended the school, and on the afternoon m question he was a passenger on the bus returning home. He left the bus at a point near his home, was struck and injured by a truck owned and operated by Earl W. Baker and Company, and died about five hours later. George A. Lagaly, administrator of the estate of the deceased, instituted this action against Truck Insurance Exchange and Earl W. Baker and Company to recover damages. Responding to special interrogatories, the jury expressly found that both defendants were negligent, and that the negligence of each was a proximate cause of the injury. A general verdict was returned for the plaintiff, judgment was entered accordingly, and defendants appealed. For convenience, reference will be made to the parties in the manner in which they appeared in the trial court.
Defendant Truck Insurance Exchange advances the contention that its liability was limited to the operation of the bus; that the operation of the bus did not have anything to do with the accident; and that therefore plaintiff was not entitled to recover on the policy. Section 13, Article 9, Chapter 34, Laws of Oklahoma 1939, Section 1195l, Title 70, Oklahoma Statutes 1941, provides that the governing board of a school district authorized by the Act to furnish transportation may purchase insurance for the purpose of paying damages to persons sustaining injuries proximately caused by the operation of a motor vehicle used in the transportation of school children under the Act; that no action shall be brought against the school district under the section, but may be brought against the insurer; and that the amount of damages recovered shall be limited to the amount provided in the contract of insurance. The policy was issued and acquired under the authority of the statute, and it provided for the payment of damages for bodily injuries, including death at any time resulting therefrom, sustained by any person or persons, caused by accident arising out of the ownership, maintenance, or use of the bus. Under the statute and the policy, the liability of the insurer was limited to damages for injury arising out of the operation of the bus.
But the operation of the bus within the scope of the statute and the policy included the receiving of the children into the bus and their exit from it. The Lagaly children were being transported from school to their home. When the bus reached a point on the highway in front of the Lagaly home, the driver pulled over on the east shoulder of the highway and stopped in order that the Lagaly children might alight. Patrick F. Lagaly alighted, walked around in front of the bus, and started across the highway toward his home. The truck was passing the bus at that instant, and the child came in contact with it. Opening the door of the bus and allowing the children to alight in those circumstances was an integral part in the operation of the bus. Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559; Pendarvis v. Pfeifer, 132 Fla. 724, 182 So. 307.
It was the duty of the school district to exercise extraordinary care for the safety of the children being transported to and from school. Phillips v. Hardgrove, supra; Roberts v. Baker, 57 Ga.App. 733, 196 S.E. 104. Here the bus was traveling eastward on a dirt road which intersects with a paved highway running north and south. As it approached the/ intersection, the driver looked to the south and saw the truck coming north on the highway. It was then between a quarter and a half mile away and was traveling at about thirty miles per hour. The bus proceeded onto the highway, turned to the left, and started north on the highway. It went for approximately a quarter of a mile to the point in front of the Lagaly home where it stopped. The driver knew that the paved highway was traveled generally; knew or should have known that the Lagaly children would immediately start across it in order to reach their home; and knew or should have known that the truck was following the bus. Yet, without exerting any effort to ascertain the condition of traffic approaching from the rear, without making any effort to ascertain the proximity of the truck, and without giving the children any warning in respect of the approaching truck, he opened the door and permitted them to alight. Considering all the facts and circumstances in their totality, the jury was warranted in finding that the driver was negligent in the operation of the bus, and that the negligence was a proximate cause of the accident. Machenheimer v. Falknor, 144 Wash. 27, 255 P. 1031; Phillips v. Hardgrove, supra; Pendarvis v. Pfeifer, supra; Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900; Reeves v. Tittle, Tex.Civ.App., 129 S.W.2d 364.
The statute, supra, authorizes insurance for the purpose of paying damages to persons sustaining injuries proximately caused by the operation of motor vehicles used in the transporting of school children. This is not an action by the person who suffered the injury. It is by the administrator of the estate of the deceased. But no reason is suggested for a legislative purpose to make provision for the protection of one who receives an injury arising out of the operation of a school bus, and at the same time absolve the insurer from any liability in the event of the death of the injured person. There is no basis for the conclusion that the legislature intended to bring about such a harsh and unreasonable result. Taking into account the purpose of the statute, the language contained in it, and the provisions of the policy, we think the policy covers damages for injury arising out of the negligent operation of the bus which results in death, and that the administrator of the estate of the deceased may maintain the action on the policy. Hindel v. State Farm Mut. Auto Ins. Co., 7 Cir., 97 F.2d 777, certiorari denied 305 U.S. 647, 59 S.Ct. 153, 83 L.Ed. 418.
Section 12, Article 9, Chapter 34, Laws of Oklahoma 1939, Section 1195k, Title 70, Oklahoma Statutes 1941, provides that the driver of a motor vehicle on a highway or road outside the limits of a city or town shall bring his vehicle to a complete stop before passing a vehicle being used in the transportation of school children which has stopped for the purpose of permitting a child or children to enter or alight from such vehicle, and it provides a penalty for its violation. The driver of the truck knew that the bus ahead was a school bus. He saw it pull over to the shoulder of the highway and stop in order to permit the children to alight. Yet he made no effort to stop. Instead he continued at about thirty miles per hour. The failure to perform a statutory duty imposed under the police power of the state for the protection of the public, or the violation of an express statute for the protection of the public, constitutes negligence. Westlake v. Cole, 115 Okl. 109, 241 P. 809; Midland Oil Co. v. Ball, 115 Okl. 229, 242 P. 161; La Fayette v. Bass, 122 Okl. 182, 252 P. 1101; Comanche Drilling Co. v. Shamrock Oil & Gas Co., 122 Okl. 253, 254 P. 20; Magnolia Petroleum Co. v. Witcher, 141 Okl. 175, 284 P. 297. But unless the injury complained of is the proximate result of the negligence, and the person injured is a member of the class intended to be protected, the negligence is not actionable. Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61; Sinclair Prairie Oil Co. v. Stell, 190 Okl. 344, 124 P.2d 255. This statute was intended to protect school children being transported to and from school. The deceased was within that class. The failure to stop the truck constituted actionable negligence; and the jury was warranted in the conclusion that the negligence was a proximate cause of the accident.
The verdict was for $5000, and it is challenged on the ground of being excessive in amount. The deceased was six years of age at the time of his death. He was survived by his father, mother, several brothers, and several sisters. The family lived on a farm, and the deceased did such chores and rendered such aid as are usually done by a child of that age. He was intelligent, made good grades in school, and was faithful and obedient. When attacked on this ground, a verdict should not be disturbed on appeal unless it is so plainly excessive as to suggest that it was the result of passion or prejudice on the part of the jury. Lakeview, Inc., v. Davidson, 166 Okl. 171, 26 P.2d 760; Hale-Halsell Co. v. Webb, 184 Okl. 589, 89 P.2d 273. The amount of damages properly recoverable in a case of this kind is incapable of exact mathematical demonstration. It is a matter of reasonable approximation having its basis in a proper consideration of all relevant factors. In Hale-Halsell Co. v. Webb, supra, a verdict of $6000 for the death of a girl four years of age was sustained. In Lakeview, Inc., v. Davidson, supra, recovery of $8000 for the death of a boy five years of age was upheld. And in Kurn v. Youngblood, Okl.Sup., 142 P.2d 983, an award of $10,000 for the death of a boy fifteen years of age was approved. Our course chartered by these cases, we cannot say that this verdict was excessive.
The court included in the judgment the sum of $450 for funeral expenses, without having submitted the matter to the jury. Challenging that action, it is contended that the parties agreed at the pretrial conference that $450 was a reasonable sum for funeral expenses but did not agree that plaintiff had actually been out that much, and that proof was not waived.' But to this we cannot assent. The proceedings at the pre-trial conference amounted to an agreement of the parties that the sum mentioned should be the amount allowed for funeral expenses in the event of recovery for the death of the deceased. In the light of the agreement, there was no occasion to submit the matter to the jury. The court was well within its rights in including the amount in the judgment, based on the agreement. Delco Light Frigidaire Co. v. Babb, 168 Okl. 207, 32 P.2d 894.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant?
A. auto industry
B. chemical industry
C. drug industry
D. food industry
E. oil & gas industry
F. clothing & textile industry
G. electronic industry
H. alcohol and tobacco industry
I. other
J. unclear
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".
HUNKIN-CONKEY CONSTRUCTION COMPANY and Anchor Fireproofing Company, Plaintiffs in Error, v. John Henry BRADLEY, Defendant in Error.
(Circuit Court of Appeals, Fourth Circuit.
June 11, 1926.)
No. 2478.
In Error to the District Court of the United States for the Western District of South Carolina, at Greenville.
Dakyns B. Stover, Haynsworth & Haynsworth, and Stephen Nettles, all of Greenville, S. C., for plaintiffs in error.
Dean, Cothran & Wyche, of Greenville, S. C., for defendant in error.
PER CURIAM.
Consent judgment filed. Cost to be paid by plaintiffs in error.
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_state
|
47
|
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".
PATTERSON v. UNITED STATES. KIMBALL v. UNITED STATES.
Nos. 6115, 6116.
United States Court of Appeals Fourth Circuit.
Submitted on briefs July 3,1950.
Decided July 6, 1950.
W. R. Allcott, of Richmond, Va., for appellants.
George R. Humrickhouse, U. S. Atty., and Robert N. Pollard, Jr., Asst. U. S. Atty., both of Richmond, Va., for appellee.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
PER CURIAM.
The appellants Patterson and Kimball were convicted in the court below of the crime of escaping from The Federal Reformatory at Petersburg, Virginia, in which they were confined. After conviction and sentence they moved that the judgment of the court be set aside and that they be granted a new trial on the ground that they had already been punished for the escape in that after their return to the reformatory they had been placed in soli iary confinement for a certain period and the “good time” which they had earned had been revoked. Aside from the fact that the granting of a new trial was a matter resting in the sound discretion of the trial court which may not be disturbed in the absence of abuse, it is perfectly clear that the motions here were absolutely lacking in merit. Criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved. Pagliaro v. Cox, Warden, 8 Cir., 143 F.2d 900.
Affirmed on both Appeals.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
O’KEEFFE, DEPUTY COMMISSIONER, SIXTH COMPENSATION DISTRICT, DEPARTMENT OF LABOR v. AEROJET-GENERAL SHIPYARDS, INC.
No. 71-262.
Decided December 14, 1971
Per Curiam.
Petitioner, a Labor Department Deputy Commissioner, rejected an employee’s claim against respondent under the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., on the ground that the proofs failed to establish that his disability was related to conditions of his employment. Thereafter petitioner reopened the case pursuant to § 22 of the Act, 33 U. S. C. § 922. On the basis of testimony by the employee’s personal physician and a commission-appointed doctor; petitioner concluded, contrary to his initial determination, that the disabling condition had in fact been “materially aggravated and hastened” by the circumstances of employment, and awarded him compensation. The District Court sustained the award but the Court of Appeals for the Fifth Circuit, one judge dissenting, reversed. 442 F. 2d 508. The Court of. Appeals held that in the absence of changed conditions or new evidence clearly demonstrating mistake in the initial determination, the “statute simply does not confer authority upon the Deputy Commissioner to receive additional but cumulative evidence and change his mind.” 442 F. 2d, at 513.
Neither the wording of the statute nor its legislative history supports this “narrowly technical and impractical construction.” Luckenbach S. S. Co. v. Norton, 106 F. 2d 137, 138 (CA3 1939). Section 22 of the Act provides:
“Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. . . .” 33 U. S. C. § 922.
Thus, on its face, the section permits a reopening within one year “because of a mistake in a determination of fact.” There is no limitation to particular factual errors, or to cases involving new evidence or changed circumstances. The Act at one time did authorize reopening only on the “ground of a change in conditions,” 44 Stat. 1437, but was amended in 1934 expressly to “broaden the grounds on which a deputy commissioner can modify an award . . . when changed conditions or a mistake in a determination of fact makes such modification desirable in order to render justice under the act.” S. Rep. No. 588, 73d Cong., 2d Sess., 3-4 (1934); H. R. Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934). The plain import of this amendment was to vest a deputy commissioner with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.
Nor does our construction “render meaningless the provision [of §21 of (the Act, 33 U. S. C. §921] that [a compensation] order becomes final unless proceedings for review are brought within thirty days.” Case v. Calbeck, 304 F. 2d 198, 201 (CA5 1962). The review authorized by § 21 is limited to the legal yalidity of the award; a district court may set aside an award only if it is “not in accordance with law.” Section 21 (b), 33 U. S. C. §921 (b). The 30-day limit of §21 is not “rendered meaningless” by setting a different time limit for a redetermination of fact. Moreover, the absence of a provision in § 21 for the judicial review of evidence confirms the need for a broad discretion in the deputy commissioner, to review factual errors in an effort “to render justice under the act.”
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_origin
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
FIELD’S ESTATE v. COMMISSIONER OF INTERNAL REVENUE.
No. 202.
Circuit Court of Appeals, Second Circuit.
July 13, 1944.
Writ of Certiorari Granted Dec. 4, 1944.
See 65 S.Ct. 267.
Edgar J. Bernheimer, of New York City (Sydney J. Schwartz, of New York City, of counsel), for petitioner.
Samuel O. Clark, Jr., Sewall Key, Helen R. Carloss, and Robert Koerner, all of Washington, D. C., for respondent.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
In Helvering v. Hallock, 309 U.S. 106, 111, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, the Court said that “the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment” Precisely what that means has been a matter of much comment. We do not agree with the Tax Court that Smith v. Shaughnessy, 318 U.S. 176, 63 S.Ct. 545, 87 L.Ed. 690, which dealt with a gift tax, aids decision here. Whatever we might now hold if this were for us a novel question, we need not consider, for the matter is governed in this circuit by our decisions in Commissioner v. Flanders, 2 Cir., 111 F.2d 117 and Bankers Trust Co. v. Higgins, 2 Cir., 136 F.2d 477. Accordingly we hold that the value of the transfer at decedent’s death consisted of the value of the trust property minus the value of the life estates of his two nieces. The resulting taxable value here is $24,930.76. We reverse with directions to the Tax Court to fix the tax on that value.
Reversed and remanded.
See Paul, Federal Estate and Gift Taxation, Sec. 7.25.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
BROWDER v. DIRECTOR, DEPARTMENT OF CORRECTIONS OF ILLINOIS
No. 76-5325.
Argued October 31, 1977
Decided January 10, 1978
Kenneth N. Flaxman argued the cause for petitioner. With him on the briefs were John M. Kalnins, Thomas R. Meites, and Frederick H. Weisberg.
Raymond McKoski, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.
David Goldberger and Joel Gora filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Howard Eg'lit filed a brief for the Chicago Council of Lawyers as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
This case requires us to decide whether the Court of Appeals lacked jurisdiction to review an order directing petitioner’s discharge from respondent’s custody because respondent’s appeal was untimely. In order to resolve this question, we must consider the applicability of Federal Rules of Civil Procedure 52 (b) and 59 in habeas corpus proceedings. Because we conclude that the Court of Appeals lacked jurisdiction, w© reverse.
I
On January 29, 1971, a teenage girl reported to Chicago police that she had been raped. She gave a physical description of her assailants to one officer and told another officer that one of her attackers was named “Browder,” was about 17 years old, and lived in the 4000 block of West Monroe. On the basis of this information and further investigation, the police focused on petitioner’s brother, Tyrone Browder, whose name was in the files of the Youth Division of the Chicago Police Department. A telephone conversation between a Youth Division officer and Mrs. Lucille Browder shifted the officers’ suspicions from Tyrone to petitioner, and Mrs. Browder agreed to keep both her sons at home until the police arrived to talk to them. Four officers interviewed petitioner and his brother, both of whom denied knowledge of the rape. The officers arrested the brothers along with two other teenage Negro males who were present at the Browder home. The four arrestees were taken to the police station, where another officer noticed that petitioner fit the description of the assailant in a rape that had taken place on January 30. In separate lineups, each complainant identified petitioner as her assailant. After being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966), petitioner confessed to the second rape but denied having committed the rape on January 29.
At his trial for the January 30 rape, petitioner moved unsuccessfully to suppress the lineup identification and the confession on grounds unrelated to the lawfulness of his arrest, which petitioner did not challenge. On direct appeal, however, petitioner argued that the identification and confession were the fruits of an unlawful arrest, effected without probable cause and without a warrant. The Illinois intermediate appellate court invoked its contemporaneous-objection rule and held that petitioner had waived this claim. Petitioner's efforts to obtain review of this claim on direct appeal to the Illinois Supreme Court and on state collateral attack fared no better.
Petitioner met with success at last when he petitioned for a writ of habeas corpus in Federal District Court. On October 21, 1975, the District Court issued an opinion and order directing that petitioner be released from custody unless the State retried him within 60 days. The court did not hold an evidentiary hearing, but it found on the basis of the petition, the respondent's “motion to dismiss,” and the state-court record that the police lacked probable cause to arrest petitioner on the evening of January 31, 1971. Unable to conclude that the taint of the unlawful arrest had been dissipated when the identification and confession were obtained, the court held that both were inadmissible.
On November 18, or 28 days after entry of the District Court’s order, respondent filed with the District Court a motion “to Further Stay the Execution of the Writ of Habeas Corpus and to Conduct an Evidentiary Hearing.” Respondent submitted that the state-court record was inadequate and that the District Court had “erred in granting the writ without first conducting an evidentiary hearing to determine if in fact petitioner was arrested without probable cause and if so, whether his confession was thereby tainted.” App. 118. Respondent cited Townsend v. Sain, 372 U. S. 293 (1963), and United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974), as authority for his asserted right to an evidentiary hearing, but did not identify the source of the court’s authority to consider the motion.
The District Court nevertheless entertained the motion, granted a stay of execution on December 8, and on December 12 set a date for an evidentiary hearing on the issue of probable cause. The court noted that the inadequacy of the state-trial record had not been raised in respondent’s “motion to dismiss” but concluded “that the request for an evidentiary hearing should not be denied solely because it is untimely.” App. 120. Petitioner moved immediately to vacate the orders granting a stay and an evidentiary hearing on the ground that the court lacked jurisdiction to enter them. Petitioner explained that because the period of time prescribed by the Federal Rules of Civil Procedure for a motion for a new trial or to alter or amend a judgment had elapsed, the District Court “no longer ha[d] jurisdiction to alter or amend its final order of October 21, 1975, and the orders whose vacatur is sought are void orders.” Id., at 122.
The evidentiary hearing was held nevertheless on January 7, 1976, and on January 26, 1976, the District Court ruled: “[T]he writ of habeas corpus was properly issued on October 21, 1975. The motion to reconsider is therefore DENIED.” Id., at 161. Respondent immediately filed a notice of appeal seeking review of the order of October 21 as well as the order of January 26. Petitioner maintained, consistently, that the Court of Appeals lacked jurisdiction to review the original order granting relief, since respondent's notice of appeal was not filed within 30 days of that order, and the time for appeal had not been tolled by respondent’s untimely post-judgment motion. See n. 5, supra. Even if the order of January 26 were construed as a denial of relief from judgment under Fed. Rule Civ. Proc. 60 (b), as to which the appeal would have been timely, petitioner argued that the Court of Appeals would have jurisdiction only to review that order for abuse of discretion. Respondent disclaimed reliance on Rule 60 (b), insisting instead that the order of October 21 was not a final order and that a timely appeal had been taken from the final order of January 26.
The Court of Appeals did not address the question of its appellate jurisdiction except to observe, in a cryptic footnote, that it did not have to consider “whether there was an untimely appeal” on the issue whether petitioner’s confession was admissible under Brown v. Illinois, 422 U. S. 590 (1975). The court reversed the District Court without a published opinion, holding that the police had had probable cause to arrest petitioner. Judgt. order reported at 534 F. 2d 331 (CA7 1976). Rehearing was denied. We granted certiorari. 429 U. S. 1072 (1977).
II
Under Fed. Rule App. Proc. 4 (a) and 28 U. S. C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken. This 30-day time limit is “mandatory and jurisdictional.” United States v. Robinson, 361 U. S. 220, 229 (1960). See also Fallen v. United States, 378 U. S. 139 (1964); Coppedge v. United States, 369 U. S. 438, 442 (1962); United States v. Schaefer Brewing Co., 356 U. S. 227 (1958); Matton Steamboat Co. v. Murphy, 319 U. S. 412, 415 (1943); George v. Victor Talking Mach. Co., 293 U. S. 377, 379 (1934). The purpose of the rule is clear: It is “to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands. Any other construction of the statute would defeat its purpose.” Matton Steamboat, supra, at 415.
The running of time for filing a notice of appeal may be tolled, according to the terms of Rule 4(a), by a timely motion filed in the district court pursuant to Rule 52 (b) or Rule 59. Respondent’s motion for a stay and an evidentiary hearing was filed 28 days after the District Court’s order directing that petitioner be discharged. It was untimely under the Civil Rules, see n. 5, supra, and therefore could not toll the running of time to appeal under Rule 4 (a). The Court of Appeals therefore lacked jurisdiction to review the order of October 21. But respondent answers that Rules 52 (b) and 59 do not apply because the order of October 21 was not final and, in any event, the Federal Rules of Civil Procedure did not apply in this habeas corpus proceeding. We consider each of these contentions.
A
An appeal in a habeas corpus proceeding lies from a “final order,” 28 U. S. C. § 2253. The District Court’s order of October 21 purported to be final, as it granted petitioner’s application for a writ of habeas corpus and directed that petitioner be discharged if the State did not retry him within 60 days. Respondent contends, however, that this order was not a final order “ ‘leaving nothing to be done but to enforce by execution what had been determined,’ Catlin v. United States, 324 U. S. 229, 236 (1945), because all required procedures under the Habeas Corpus Act had not been completed at the time the order was issued.” Brief for Respondent 42. Respondent cites 28 U. S. C. §§ 2243 and 2254 (d) and the Court’s decision in Townsend v. Sain, 372 U. S. 293 (1963), in support of his contention that the October 21 order “cannot be considered a final order under 28 U. S. C. [§] 2253 because it left unresolved the statutorily prescribed question of whether an evidentiary .hearing would be required . . . Brief for Respondent 43.
Respondent’s position confuses error with nonfinality and fails to distinguish between the requirements of the habeas corpus statutes and the procedural means for correcting asserted error in fulfilling the statutory command. Here the District Court discharged its duty “summarily [to] hear and determine the facts/’ 28 U. S. C. § 2243, by granting the petition on the state-court record. See Walker v. Johnston, 312 U. S. 275, 284 (1941). Respondent’s failure to assert the need for an evidentiary hearing in his motion to dismiss did not necessarily deprive him of the right to assert the absence of a hearing as a reason for reconsideration or as error on appeal, but neither did the absence of an evidentiary hearing render the District Court order nonfinal. If respondent were correct in his theory of finality, any order later alleged to have been entered precipitately or after an incomplete hearing could be considered nonfinal for purposes of appeal. The confusion that would result from litigants’ divergent views of the completeness of proceedings would be wholly at odds with the imperative that jurisdictional requirements be explicit and unambiguous.
B
Since the order of October 21 was a final order, the time for appeal commenced to run on that date. Respondent’s notice of appeal therefore was untimely by 68 days, unless respondent’s motion of November 18 tolled the time for appeal under Rule 4 (a). The rationale behind the tolling principle of the Rule is the same as in traditional practice: “A timely petition for rehearing tolls the running of the '[appeal] period because it operates to suspend the finality of the . . . court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Department of Banking v. Pink, 317 U. S. 264, 266 (1942) (emphasis supplied). An untimely request for rehearing does not have the same effect. Respondent seeks to avoid the conclusion that his motion was untimely under the Civil Rules, and therefore did not toll the time for appeal under Appellate Rule 4 (a), by asserting that his motion was not based on Rule 52 (b) or Rule 59 because the Federal Rules of Civil Procedure were not applicable in this habeas proceeding.
Respondent’s failure to rely on a particular rule in making his motion does not suffice to make the Federal Rules inapplicable. Respondent’s insistence that his motion was not based on any of the Federal Rules, but rather on the habeas corpus statutes and Townsend v. Sain, supra, parallels his theory of the nonfinality of the October 21 order and reflects his failure to recognize that the habeas corpus statutes do not prescribe postjudgment procedures. During the pendency of a habeas proceeding, the procedure indeed is set out in the habeas corpus statutes, and Fed. Rule Civ. Proc. 81 (a) (2) recognizes the supremacy of the statutory procedures over the Federal Rules. But those procedures say nothing about the proper method for obtaining the correction of asserted errors after judgment, whether on appeal or in the District Court.
Respondent asserts that his motion of November 18 was timely because it was filed within the 30-day period allowed for appeal, as was the case in United States v. Dieter, 429 U. S. 6 (1976). In relying upon Dieter, respondent misconceives our holding in that case. There the Court followed United States v. Healy, 376 U. S. 75 (1964), and held that a timely motion for rehearing in a criminal case would toll the running of the time for appeal. In Dieter, as in Healy, no rule governed the timeliness of a motion for rehearing by the Government in a criminal case or the effect of such a motion on the time allowed for appeal. Instead, “ 'traditional and virtually unquestioned practice’ ” dictated that a timely petition for rehearing would render the original judgment nonfinal for purposes of appeal and therefore would toll the time for appeal, Dieter, supra, at 8, and n. 3 (quoting Healy, supra, at 79); and absent a rule specifying a different time limit, a petition for rehearing in a criminal case would be considered timely "when filed within the original period for review,” 376 U. S., at 78. In a civil case, however, the timeliness of a motion for rehearing or reconsideration is governed by Rule 52 (b) or Rule 59, each of which allows only 10 days; and Rule 4 (a) follows the “traditional and virtually unquestioned practice” in requiring that a motion be timely if it is to toll the time for appeal.
Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. We think this is a mistaken assumption. It is well settled that habeas corpus is a'civil proceeding. Fisher v. Baker, 203 U. S. 174, 181 (1906); Ex parte Tom Tong, 108 U. S. 556 (1883); see Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U. S. 286, 293-294, and n. 4 (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed. Rule Civ. Proc. 81 (a) (2); see Fed. Rule Civ. Proc. 1.
In Harris the Court considered whether the discovery procedure authorized by Fed. Rule Civ. Proc. 33 is available in a habeas corpus proceeding. The Court concluded “that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure . . . make it clear that Rule 81 (a) (2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.” 394 U. S., at 293. In Thompson v. INS, 375 U. S. 384 (1964), on the other hand, the Court assumed without discussion that Rules 52 (b) and 59 applied in a “proceeding for admission to citizenship” in which, as in a habeas corpus proceeding, the applicability of the Civil Rules is qualified by Rule 81 (a) (2).
Although this Court has not had occasion to hold Rules 52 (b) and 59 applicable in habeas corpus proceedings, the Courts of Appeals uniformly have so held or assumed. E. g., Rothman v. United States, 508 F. 2d 648, 651 (CA3 1975); Hunter v. Thomas, 173 F. 2d 810 (CA10 1949) (motion for a new trial by the custodian). The combined application of the time limit in Rule 52 (b) or 59 and the tolling principle of Rule 4 (a) or its predecessor, Fed. Rule Civ. Proc. 73 (a), has resulted in dismissal of appeals from dispositions on habeas corpus petitions. E. g., Flint v. Howard, 464 F. 2d 1084, 1086 (CA1 1972). See also Fitzsimmons v. Yeager, 391 F. 2d 849 (CA3) (en banc), cert. denied, 393 U. S. 868 (1968); Munich v. United States, 330 F. 2d 774 (CA9 1964).
We see no reason to hold to the contrary. No other statute of the United States is addressed to the timeliness of a motion to reconsider the grant or denial of habeas corpus relief, and the practice in habeas corpus proceedings before the advent of the Federal Rules of Civil Procedure conformed to the practice in other civil proceedings with respect to the correction or reopening of a judgment. At common law, a court had the power to alter or amend its own judgments during, but not after, the term of court in which the original judgment was rendered, United States v. Mayer, 235 U. S. 55, 67 (1914); Bronson v. Schulten, 104 U. S. 410, 415 (1882); Ex parte Lange, 18 Wall. 163, 167 (1874); Basset v. United States, 9 Wall. 38, 41 (1870); and this rule was applied in habeas corpus cases, see Aderhold v. Murphy, 103 F. 2d 492 (CA10 1939); Tiberg v. Warren, 192 F. 458, 463 (CA9 1911). The 1946 amendments to the Rules of Civil Procedure abolished terms of court and instead confined the power of a district court to alter or amend a final order to the time period stated in Rules 52 (b) and 59. See Advisory Committee Report, 5 F. R. D. 483, 486-487 (1946). “The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed.” United States v. Smith, 331 U. S. 469, 473 n. 2 (1947) (referring to the time limit prescribed by the Federal Rules of Criminal Procedure for new trial motions).
In addition to the settled conformity of habeas corpus and other civil proceedings with respect to time limits on post-judgment relief, the emphasis in the Federal Rules of Civil Procedure on “just” and “speedy” adjudication, see Fed. Rule Civ. Proc. 1, parallels the ideal of “a swift, flexible, and summary determination” of a habeas corpus petitioner’s claim. Preiser v. Rodriguez, 411 U. S. 475, 495 (1973). See also Fay v. Noia, 372 U. S. 391, 401-402 (1963); United States ex rel. Mattox v. Scott, 507 F. 2d 919, 923 (CA7 1974); Wallace v. Heinze, 351 F. 2d 39, 40 (CA9 1965), cert. denied, 384 U. S. 954 (1966). Rule 59 in particular is based on an “interest in speedy disposition and finality,” Silk v. Sandoval, 435 F. 2d 1266, 1268 (CA1), cert. denied, 402 U. S. 1012 (1971). Although some aspects of the Federal Rules of Civil Procedure may be inappropriate for habeas proceedings, see Harris v. Nelson, supra; Preiser, supra, at 495-496, the requirement of a prompt motion for reconsideration is well suited to the “special problems and character of such proceedings.” Harris v. Nelson, supra, at 296. Application of the strict time limits of Rules 52 (b) and 59 to motions for reconsideration of rulings on habeas corpus petitions, then, is thoroughly consistent with the spirit of the habeas corpus statutes.
Because respondent failed to comply with these “mandatory and jurisdictional” time limits, the judgment of the Court of Appeals must be
Reversed.
In light of this disposition, it is unnecessary to reach any of the other questions presented. In addition to his jurisdictional point, petitioner contended that the Court of Appeals erred in finding the facts de novo on the issue of probable cause and in concluding that petitioner’s arrest was lawful. On the latter point, petitioner maintained that the arrest of four youths in the Browder home violated the Fourth and Fourteenth Amendments’ requirement of probable cause, Davis v. Mississippi, 394 U. S. 721 (1969), and, even assuming the existence of probable cause, that the Fourth and Fourteenth Amendments required the police to obtain an arrest warrant before entering the Browder home to make the arrests. The parties also have disputed whether litigation of petitioner’s Fourth Amendment claim on federal habeas corpus was barred either by Wainwright v. Sykes, 433 U. S. 72 (1977), or by Stone v. Powell, 428 U. S. 465 (1976). Finally, petitioner questioned the validity of the Seventh Circuit’s “unpublished opinion” rule. We leave these questions to another day.
Respondent moved to dismiss the habeas corpus petition for “failure to state a claim upon which relief may be granted, pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure.” Respondent did not base his “motion to dismiss” solely on petitioner’s waiver of his claim of unlawful arrest; respondent also addressed the merits of the Fourth Amendment claim.
The District Court held that petitioner’s failure to raise the issue at trial did not bar habeas corpus relief because it found, citing Fay v. Noia, 372 U. S. 391 (1963), that the failure was not the result of a deliberate tactical decision to forgo the claim.
By untimeliness the District Court apparently meant respondent’s failure to request an evidentiary hearing prior to the court’s ruling on October 21. The court made no mention of the Federal Rules of Civil Procedure. The untimeliness of respondent’s motion under those Rules was first mentioned in petitioner’s motion to vacate the orders granting a stay and setting a date for an evidentiary hearing.
A motion for a new trial may be made under Rule 59 (a). Rule 59 (b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment.” Similarly, "[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” Rule 52 (b). Under Rule 59 (e), “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Since respondent neglected to label his motion, it is impossible to tell whether the motion was based on Rule 59 (a), Rule 52 (b), or Rule 59 (e). Rule 6 (b) prohibits enlargement of the time period prescribed in all of these Rules.
Because all three Rules contain the same 10-day time limit, it is unnecessary for purposes of this decision to determine whether respondent’s motion should be considered a motion for a new trial, a motion to amend or make additional findings, or a motion to alter or amend the judgment. We shall refer to the motion as one for rehearing or reconsideration, for such was the essence of the relief requested. See generally United States v. Dieter, 429 U. S. 6, 8-9 (1976).
Petitioner acknowledged that under Rule 60 (b), which provides for relief from judgment under certain enumerated circumstances, “a court may modify a final order granting habeas relief after the ten day limit of Rules 52 and 59”; but petitioner argued that respondent’s motion was “insufficient” under Rule 60 (b). This asserted insufficiency was twofold: The motion was not made within a "reasonable time,” as required by the Rule; more significantly, it did not contain allegations that would qualify for relief under any of the Rule’s six categories. Respondent merely sought to convince the court that it had erred in granting relief without holding an evidentiary hearing; respondent’s purpose was to introduce additional, not newly discovered, evidence.
Rule 60 (b), unlike Rules 52 (b) and 59, does not contain a 10-day time limit. A motion for relief from judgment under Rule 60 (b), however, does not toll the time for appeal from, or affect the finality of, the original judgment. See 7 J. Moore, Federal Practice ¶ 60.29, pp. 413-414 (1975). Thus, while the District Court lost jurisdiction 10 days after entry of the October 21 judgment to grant relief under Rule 52 (b) or 59, its power to grant relief from judgment under Rule 60 (b) still existed on Januarjr 26. A timely appeal may be taken under Fed. Rule App. Proc. 4 (a) from a ruling on a Rule 60 (b) motion. The Court of Appeals may review the ruling only for abuse of discretion, however, and an appeal from denial of Rule 60 (b) relief does not bring up the underlying judgment for review. See Daily Mirror, Inc. v. New York News, Inc., 533 F. 2d 53 (CA2), cert. denied, 429 U. S. 862 (1976); Brennan v. Midwestern United Life Ins. Co., 450 F. 2d 999 (CA7 1971), cert. denied, 405 U. S. 921 (1972); 7 J. Moore, Federal Practice ¶ 60.19, p. 231; ¶ 60.30 [3], pp. 430-431 (1975).
Respondent has insisted throughout this litigation that his motion for an evidentiary hearing was not based on Rule 60 (b). This position derives in part from respondent’s consistently held view that until January 26, 1976, there was no final judgment from which relief could be sought or obtained, and in part from his view that the Federal Rules of Civil Procedure are not applicable in habeas corpus proceedings. It may be that respondent desired as well to avoid the force of petitioner’s arguments as to the limited scope of appellate review of a district court's disposition of a Rule 60 (b) motion. See n. 7, supra. In any event, since respondent has represented to the Court of Appeals and to this Court that his motion was not based on Rule 60 (b), and since the District Court did not construe it as such, we find it unnecessary to address the question whether the decision of the Court of Appeals could be sustained on the theory that despite the absence of any reference to Rule 60 (b) or any of its specified grounds, the action of the District Court was reversible as an improper denial of relief under that Rule.
Rule 11 of the new Federal Rules Governing 28 U. S. C. § 2254 Cases provides:
“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”
The new Rules are applicable to cases commenced on or after February 1, 1977. They have no bearing on the instant case, which was commenced on January 8, 1975.
It is undisputed that Fed. Rule App. Proc. 4 (a) is applicable to habeas corpus proceedings. See Developments in the Law' — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1192, and n. 262 (1970)).
The Court stated in Walker v. Johnston that there could be situations where “on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge.” 312 U. S., at 284. Several Courts of Appeals have acknowledged the power of a federal district court to discharge a habeas corpus petitioner from state custody without conducting an evidentiary hearing, when the facts are undisputed and establish a denial of petitioner’s constitutional rights. E. g., Gladden v. Gidley, 337 F. 2d 575, 578 (CA9 1964) (dictum); United States ex rel. Meers v. Wilkins, 326 F. 2d 135, 140 (CA2 1964) (Marshall, J.); Dorsey v. Gill, 80 U. S. App. D. C. 9, 18, 148 F. 2d 857, 866, cert. denied, 325 U. S. 890 (1945). We express no view on whether or not the District Court erred in not conducting an evidentiary hearing before issuing its order directing petitioner’s conditional discharge.
See, e. g., Gladden, supra; Hunter v. Thomas, 173 F. 2d 810 (CA10 1949).
See, e. g., United States ex rel. McNair v. New Jersey, 492 F. 2d 1307 (CA3 1974); United States ex rel. Mitchell v. Follette, 358 F. 2d 922 (CA2 1966); Gladden, supra. The better procedure, of course, would be for the custodian “to indicate, in any submission asking dismissal as a matter of law, the proceedings to which it deems itself entitled if its request should be denied.” Mitchell, supra, at 929. See also McNair, supra, at 1309; Gladden, supra, at 578.
Respondent’s contention that the "traditional and virtually unquestioned practice” in habeas corpus proceedings contemplates an eviden-tiary hearing in cases like this one misunderstands the import of Dieter and Healy. The Court’s resort to traditional practice in those cases was predicated explicitly on the absence of a relevant statute or rule governing the tolling of the time to appeal. It had nothing to do with the practice or procedure of the underlying criminal trial. Where, as here, a rule governs the procedure in question, the problem addressed in Dieter and Healy is absent.
Respondent did assume, however, that Rule 12 (b)(6) is applicable; he denominated his original response to the habeas petition a “motion to dismiss” explicitly based on that Rule. See n. 2, supra. Respondent’s conception — which lies at the heart of his view that the lack of an evidentiary hearing rendered the order of October 21 nonfinal — seems to have been that a Rule 12 (b) (6) motion is an appropriate motion in a habeas corpus proceeding, and that upon denial of such a motion, the case should proceed through answer, discovery, and trial. This view is erroneous. See Preiser v. Rodriguez, 411 U. S. 475, 496 (1973). The custodian’s response to a habeas corpus petition is not like a motion to dismiss. The procedure for responding to the application for a writ of habeas corpus, unlike the procedure for seeking correction of a judgment, is set forth in the habeas corpus statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
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.
KERNAN v. KERNAN.
No. 9357.
United States Court of Appeals District of Columbia.
Argued Oct. 10, 1947.
Decided Nov. 17, 1947.
Mr. Jean M. Boardman, of Washington, D. C., for appellant.
Mr. Jack Politz, of Washington, D. C., for appellee.
Before EDGERTON, CLARK and WILBUR K. MILLER, Associate Justices.
WILBUR K. MILLER, Associate Justice.
The appellant, Dorothy Agnes Kernan, filed a complaint in the District Court of the United States for the District of Columbia against her husband, Howard Albert Kernan, the appellee, for an absolute divorce on the ground of desertion. Alleging that for some months her husband, who earned at least $60.00 per week, had failed to contribute to the support of their thirteen-year old son, she prayed also for an allowance for the support of the child and gave notice that she would move for alimony pendente lite.
The motion came on for hearing before a trial justice who inquired of appellant's counsel whether the case hacl beg.’i before the Domestic Relations Commissioner, pursuant to the procedure prescribed by Rule 9(h) of the District Court. Counsel replied that it had not, and that he did not intend to permit his client to go before the Commissioner, whereupon the trial justice announced that he would not hear the motion until that action had been taken.
Some weeks later the motion again came on for hearing before another justice of the District Court, who also immediately inquired whether the Domestic Relations Commissioner had made a report and was told that he had not. As a matter of fact, it appears that the case had been referred to the Commissioner who had concluded that it would be futile to prepare a report because of the known practice of the appellant’s attorney in all cases handled by him to object to, and so render useless, all reports of the Commissioner. The presiding judge, during the colloquy between court and counsel, said:
“There is no evidence before me the child is suffering and the Court’s ruling is the Court won’t pass upon the question unless she goes before the Domestic Relations Commissioner. The Court thinks that is a good practice and the Court thinks the Court should insist on it without extraordinary reasons which do not appear in this case.”
Counsel for appellant requested permission to incorporate in the order the basis of the court’s ruling. Three days later, however, in the absence of appellant’s counsel, the trial justice made the following statement:
“The Court takes this position: That where a woman refuses to appear before the Domestic Relations Commissioner that the Court should ordinarily decline to grant alimony pendente lite until she does make her appearance before the Domestic Relations Commissioner.” and then added that “* * * ordinarily the Court is justified in refusing temporary alimony where the wife refuses to appear before the Domestic Relations Commissioner.” Immediately thereafter, and on July 8, 1946, an order was entered to the effect that the motion for temporary alimony, having been heard in open court, was denied. From that order this special appeal was granted.
It is therefore apparent that the learned' justice who denied the motion for alimony pendente lite by the order of July 8, 1946,. did so because the appellant had declined to submit to the procedure of Rule 9(h), and not because it had been judicially determined, after a consideration of the question on the merits, that a temporary allowance should not be awarded. This appeal challenges the right of the District Court so to refuse, in effect, to consider a motion for pendente lite maintenance because the movant had declined to appear before the Domestic Relations Commissioner.
We held in Brown v. Brown that the District Court’s rule does not require either party to an action to appear before or respond to questions asked by the Commissioner, furnish him with any information, or cooperate in any other respect, and that the whole procedure prescribed by the rule is voluntary in nature. That being true, the District Court in the present case acted erroneously in refusing to consider the motion on its merits, and in denying it solely because the movant had elected not to engage in the procedure before the Commissioner. Such action, if sustained, would make involuntary the operation of the rule which has been held to depend on voluntary cooperation.
The District Court’s denial of the motion, having been based on an erroneous conception of the rule, was an arbitrary ex-ercise of the discretion which the trial court, had as to whether an allowance should be made. It may now be regarded as settled, as heretofore held by this court in the Brown case, that a party to a divorce action may not be required to appear before, or in any way to participate in a proceeding before, the Domestic Relations Commissioner; and that any party is entitled to have a motion for custody of a child or for temporary maintenance for wife or child heard on its merits by the trial judge, regardless of the fact that he has not appeared and declines to appear before the Domestic Relations Commissioner.
We regard as immaterial the fact that, while this special appeal was pending, the case came on for trial on the merits before still a third justice of the District Court, at the conclusion of which a final judgment was entered; for the matter of the allowance of alimony pendente lite was not foreclosed by the judgment, as was the ■case in Walter v. Walter, 15 App.D.C. 333, •338. Although the final decree in this case ■made no provision for the payment of temporary alimony, the fact that the question was still open because of the pendency of this appeal was thus expressly recognized:
“That jurisdiction is retained to conduct such further proceedings or to enter such order or judgment with respect to support for the child during the pendency of this action as may be directed by the mandate of the United States Court of Appeals for the District of Columbia in connection with the special appeal now pending before that court.”
The fact that this special appeal was pending in this court at the time of the entry of the final judgment in the District Court amply preserves the power of the latter, upon a return of the case, to exercise a sound judicial discretion as to whether a pendente lite allowance should be made and, if so, as to what the amount of it should be. This is consistent with our ruling in Cole v. Cole, 82 U.S.App.D.C. 155, 161 F.2d 883.
This case will be remanded, therefore, with the direction that the District Court proceed to consider on its merits the appellant’s motion for an allowance for the period during which the action was pending in that court.
Reversed and remanded.
Rule 9 (h) of the District Court is as follows:
“(1) Commissioner to Investigate and Report. The assistant clerk of court, designated as Domestic Relations Commissioner, shall assist the court in matters involving custody of a child or maintenance for a wife or child. He shall investigate the facts in each case, file a report thereof, including his recommendations, and serve each party with a copy.
“(2) Report; Objections to. Within five days after service of a copy of the report a party may file specific objections thereto, in which event the court upon a hearing will disregard such parts as are objected to. If no objection is filed the full report may be considered by the court.
“(3) Application for Relief; Notice of to Commissioner; Failure to Report, Effect of. The party applying for temporary relief or modification of an order for custody or maintenance shall notify the Commissioner in writing of the application. If within ten days thereafter the Commissioner has not filod his report and the court deems immediate action necessary, it may hear and determine the matter without awaiting the report.”
77 U.S.App.D.C. 73, 134 F.2d 505, which involved the validity and interpretation of a District Court rule providing for a Domestic Relations Commissioner. ¡This rule, in slightly different language but of essentially similar effect, is now Rule 9 (h).
National Benefit Life Insurance Co. v. Shaw-Walker Co., 71 App.D.C. 276, 286, 111 F.2d 497, 507.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
COLONNA’S SHIPYARD, Inc., v. ROWE, County Treasurer. THE A. BROOKE TAYLOR.
(Circuit Court of Appeals, Fourth Circuit.
June 8, 1926.)
No. 2463.
1. Taxation <@=510 — Taxes held payable from proceeds of vessel sold before payment of maritime liens.
Where a vessel, owned by a corporation which owed current taxes to the state of Virginia and its municipalities, was seized in an admiralty suit before the time when the county treasurer had the right to distrain, and subsequently sold, the taxes constituted a lien, and the treasurer was entitled, on intervention in the suit, to have the taxes paid from the fund in court, realized from the sale, before payment of maritime liens.
2. Admiralty <@=>101 — Intervention to assert lien for taxes held timely.
An intervention to assert a lien for taxes against the proceeds of a vessel sold was in time where it was made during the term at which the sale was made and before the fund had been distributed.
3. Taxation @=>514 — Removal of vessel from county in admiralty proceedings held not to defeat lien for taxes.
A lien on a vessel for taxes was not lost by seizure of the vessel in admiralty proceedings and its removal from the county to another place in the same district.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence G-roner, Judge.
Suit in admiralty by Margaret E. Willing, administratrix, against the steamship A. Brooke Taylor; the Virginia Fisheries, Incorporated, claimant. From an order allowing claim for taxes of Carroll J. Rowe, Treasurer of Northumberland County, Virginia, Colonna’s Shipyard, Incorporated, appeals.
Affirmed.
Henry H. Little, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellant.
D. Arthur Kelsey, of Norfolk, Va. (R. Arthur Jett, Jr., and Kelsey & Jett, all of Norfolk, Va., on the brief), for appellee.
Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge.
WADDILL, Circuit Judge.
This is an appeal by Colonna’s Shipyard, Incorporated, intervener in the admiralty proceedings of Margaret E. Willing, administratrix, etc., against the steamship A. Brooke Taylor and the Virginia Fisheries Company, owner of said vessel, from the decree entered by the United States District Court for the Eastern District of Virginia on October 3, 1925, decreeing to Carroll J. Rowe, treasurer of Northumberland county, also an intervener in said admiralty proceedings, the amount of certain state and county taxes, to wit, $420, assessed against the said steamship for the year 1924. The facts in the case are briefly these:
The Virginia Fisheries Company, the owner of the A. Brooke Taylor, had its home office in Northumberland county, Va., and the home port of the Taylor was Reedville, in that county. Taxes for the year 1924 were assessed against the vessel, $370 for eounty purposes, and $50 for state purposes. In that year the tax lists of Northumberland county were placed in the hands of the eounty treasurer on the 13th of September, and the treasurer, on the 17th of October, 1924, gave notice in the usual course to the Virginia Fisheries Company, demanding payment of the taxes. He did not know at the time of the libel of the vessel in the admiralty proceedings. He received no reply to his de-r mand for payment of the taxes; and on the 1st of December, 1924, a penalty of 5 per cent, accrued on the taxes under the state statute. On the last-named date the taxes were placed on the list of unpaid current taxes for which the treasurer was authorized and required, until the 15th of June, 1925, to dis-train for their collection, and to account as of said date therefor with the state and county authorities.
In the libel proceeding aforesaid, on the 8th of December, 1924, the decree of sale of the steamship was entered, and subsequently, on the 22d of.December, 1924, the vessel was sold in said county, at Ditehley, Va., at public auction, pursuant to such decree. The proceeds arising from the sale of the steamship, amounting to $22,000, were promptly paid into court after the sale, and by decree of February 3, 1925, the money was decreed to be paid to the creditors according to their priorities, the court directing that the cheeks drawn under said decree be held 10 days to enable parties desiring to contest the decree to do so. The appellee, the county treasurer, neither knew of the libel of the vessel nor of the sale thereof on the 22d of December, 1924, and did not learn thereof until some time in January, 1925, when he promptly secured the services of counsel at Norfolk and caused his petition herein to be filed, setting up his claim to the taxes in question.
This petition was filed in the clerk’s office on the 12th of February, 1925, the judge being absent from the city at the time, and upon his return on the 16th of February, 1925, the petition was formally presented and filed in court. On the last-named date, the appellant, Colonna’s Shipyard, Incorporated, filed its formal answer to the treasurer’s petition, denying the liability for the taxes, insisting that no lien existed for the payment of the taxes in question, certainly none superior to that of a maritime claimant, and that the petition asserting said tax lien was not filed in time to participate in the distribution of the funds arising from the sale of the vessel. The court, after full consideration of the case, adjudged the liability and lien for the taxes to exist, and entered its decree of the 3d of October, 1925, providing for their payment, with costs, from which decree the appeal herein is taken.
The assignments of error present three questions for our consideration: First, as to the existence of a right to a lien at all by the state and county for taxes; second, whether the same takes precedence over a maritime claimant; third, whether claims for taxes were filed within time to share in the distribution of the fund arising from the ship’s sale under the control of the court. The first two questions will be considered together, as they relate to the same feature of the case.
The appellant’s theory is that the taxes involved were delinquent taxes, as to which the right to a lien on the vessel did not exist, and, if it did, that the levy should have been made upon the ship in order to make the same effective. In our view, appellant is in error in both positions taken. The supposed absence of a lien for taxes at all .is apparently predicated upon a decision of the Court of Appeals of Virginia in Jackson Coal, etc., Co. v. Phillips Line, 114 Va. 40, 50, 75 S. E. 681, and a decision of this court, and of the Supreme Court of the United States, in Bird et al. v. City of Richmond, 240 F. 545, 153 C. C. A. 349; affirmed in 249 U. S. 174, 39 S. Ct. 186, 63 L. Ed. 543. These eases dealt' with delinquent taxes, for which formal return and determination to that effect had been made, and not with current taxes, for which no opportunity had been afforded to make the levy necessary to their collection. During October and November of the year for which the taxes were due, 1924, formal opportunity was given to all persons to pay their taxes, and notice duly given advising them when and where to do so. Between the 1st of December, 1924, and the 15th of June, 1925, the right of distraint and seizure existed for the collection of such taxes. Without this right of lien and distraint to collect current taxes, the state and counties would quickly find themselves without the means to properly discharge their governmental functions. The fact that the vessel was seized on the 11th of October, 1924, and sold on the 22d of December, 1924, during the period that the taxes remained in the hands of the treasurer for collection, and before the right of levy and seizure therefor existed, clearly should not prejudice the treasurer’s right to collect the taxes by means of intervention in the admiralty proceeding, since before the first moment he could have distrained the vessel had been sold, and the proceeds therefrom remained undistributed in the custody of the court. Manifestly the treasurer’s only remedy, as against the fund arising from the sale of the vessel against which his tax lien existed, was to apply to the court having control of such fund for the payment of the taxes.
The case of Taylor v. Sutherlin-Meade Co., 107 Va. 787-796, 60 S. E. 132, 136 (14 L. R. A. [N. S.] 1135), will be found of interest as bearing on the action of the court in this case, and shows, at least, what the policy of Virginia is in circumstances like the present. The court in this ease said: “Though that particular question is no Ionger vital, we are of opinion that, under the general doctrine which obtains in such cases, and in accordance with the provisions of Code Va. 1904, § 492b, the duty devolved upon the court, before distributing the fund under its control, to provide for payment of taxes and levies due by the company. It would, indeed, be an anomalous result if either the receiver or attaching creditors could come into the courts of the state and invoke their aid to take charge of and administer the assets of an insolvent foreign corporation (thereby preventing the state and city from exercising their right to levy on the property of such corporation to enforce payment of taxes), and at the same time deny the power of the court to discharge the taxes out of the fund that it is called on to administer. It is the universal rule that a court, as the representative of the sovereignty of the'state, will make no order for the distribution of funds in custodia legis until provision is made for payment of taxes and levies due to the commonwealth and its municipalities.”
The contention of appellant that the petition was not timely filed is equally without merit. The decree of distribution filed on the 3d of February, 1925, specifically provided that the checks should not be delivered for 10 days. The petition in the ease was filed in the clerk’s office on the 12th of February, only nine days thereafter, and in open court on the 16th of February, before the cheeks were delivered. Clearly, in these circumstances, and during the same term of the court, it was within the court’s discretion to entertain an excluded creditor holding a lien of the high dignity of a current tax due the commonwealth and one of its counties, and the same should not be denied under any interpretation to be properly placed upon the admiralty rules as to reopening default decrees. This is clearly so where, as here, the court withheld the delivery of the fund under its control, and the appellee, the tax officer, applied within such period for payment of the taxes due. In the Matter of Howard, 76 U. S. (9 Wall) 175, 19 L. Ed. 634.
The appellant’s further suggestion that the lien for taxes was lost because the vessel was removed from the county, and hence without its jurisdiction, is likewise not well taken. The property in this ease was a ship, subject to the maritime jurisdiction, and it was seized by the marshal of the court having jurisdiction as well at the city of Norfolk, where the proceedings were instituted, as at the place at which the vessel was seized and sold, and therefore no rights properly attachable either to the ship, or to the money arising from the sale thereof, were lost by such removal of the property from one place to another, not over 100 miles distant, and all within the jurisdiction of the court in which the vessel was libeled and sold.
The decree appealed from is plainly right, and will be affirmed, with costs.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
BANK MARKAZI, aka Central Bank of Iran, Petitioner
v.
Deborah PETERSON, et al.
No. 14-770.
Supreme Court of the United States
Argued Jan. 13, 2016.
Decided April 20, 2016.
David M. Lindsey, Andreas A. Frischknecht, Chaffetz Lindsey LLP, New York, NY, Jeffrey A. Lamken, Robert K. Kry, Lauren M. Weinstein, Sarah J. Newman, MoloLamken LLP, Washington, DC, for Petitioner.
Liviu Vogel, Salon Marrow Dyckman, Newman & Broudy LLP, New York, NY, James P. Bonner, Patrick L. Rocco, Patrick L. Rocco, Susan M. Davies, Stone Bonner & Rocco LLP, New York, NY, Theodore B. Olson, Matthew D. McGill, Jonathan C. Bond, Lochlan F. Shelfer, Gibson, Dunn & Crutcher LLP, Washington, DC, Ashley E. Johnson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Shale D. Stiller, Richard M. Kremen, Dale K. Cathell, DLA Piper US LLP (US), Baltimore, MD, Keith Martin Fleischman, Fleischman Law Firm, New York, NY, Douglass A. Mitchell, Boies, Schiller & Flexner LLP, Las Vegas, NV, Noel J. Nudelman, Heideman Nudelman & Kalik, P.C., Washington, DC, Steven R. Perles, Perles Law Firm, P.C., Washington, DC, Thomas Fortune Fay, Fay Kaplan Law, P.A., Washington, DC, Suzelle M. Smith, Dan Howarth, Howarth & Smith (LA), Los Angeles, CA, Curtis C. Mechling, James L. Bernard, Stroock & Stroock & Lavan LLP, New York, NY, for Respondents.
Justice GINSBURG delivered the opinion of the Court.
A provision of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772, makes available for postjudgment execution a set of assets held at a New York bank for Bank Markazi, the Central Bank of Iran. The assets would partially satisfy judgments gained in separate actions by over 1,000 victims of terrorist acts sponsored by Iran. The judgments remain unpaid. Section 8772 is an unusual statute: It designates a particular set of assets and renders them available to satisfy the liability and damages judgments underlying a consolidated enforcement proceeding that the statute identifies by the District Court's docket number. The question raised by petitioner Bank Markazi: Does § 8772 violate the separation of powers by purporting to change the law for, and directing a particular result in, a single pending case?
Section 8772, we hold, does not transgress constraints placed on Congress and the President by the Constitution. The statute, we point out, is not fairly portrayed as a "one-case-only regime." Brief for Petitioner 27. Rather, it covers a category of postjudgment execution claims filed by numerous plaintiffs who, in multiple civil actions, obtained evidence-based judgments against Iran together amounting to billions of dollars. Section 8772 subjects the designated assets to execution "to satisfy any judgment" against Iran for damages caused by specified acts of terrorism. § 8772(a)(1) (emphasis added). Congress, our decisions make clear, may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative.
Adding weight to our decision, Congress passed, and the President signed, § 8772 in furtherance of their stance on a matter of foreign policy. Action in that realm warrants respectful review by courts. The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. And exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty. In accord with the courts below, we perceive in § 8772 no violation of separation-of-powers principles, and no threat to the independence of the Judiciary.
I
A
We set out here statutory provisions relevant to this case. American nationals may file suit against state sponsors of terrorism in the courts of the United States. See 28 U.S.C. § 1605A. Specifically, they may seek "money damages ... against a foreign state for personal injury or death that was caused by" acts of terrorism, including "torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support" to terrorist activities. § 1605A(a)(1). This authorization-known as the "terrorism exception"-is among enumerated exceptions prescribed in the Foreign Sovereign Immunities Act of 1976 (FSIA) to the general rule of sovereign immunity.
Victims of state-sponsored terrorism, like others proceeding under an FSIA exception, may obtain a judgment against a foreign state on "establish[ing] [their] claim[s] ... by evidence satisfactory to the court." § 1608(e). After gaining a judgment, however, plaintiffs proceeding under the terrorism exception "have often faced practical and legal difficulties" at the enforcement stage. Brief for United States as Amicus Curiae 2. Subject to stated exceptions, the FSIA shields foreign-state property from execution. § 1609. When the terrorism exception was adopted, only foreign-state property located in the United States and "used for a commercial activity" was available for the satisfaction of judgments. § 1610(a)(7), (b)(3). Further limiting judgment-enforcement prospects, the FSIA shields from execution property "of a foreign central bank or monetary authority held for its own account." § 1611(b)(1).
To lessen these enforcement difficulties, Congress enacted the Terrorism Risk Insurance Act of 2002 (TRIA), which authorizes execution of judgments obtained under the FSIA's terrorism exception against "the blocked assets of [a] terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party)." § 201(a), 116 Stat. 2337, note following 28 U.S.C. § 1610. A "blocked asset" is any asset seized by the Executive Branch pursuant to either the Trading with the Enemy Act (TWEA), 40 Stat. 411, 50 U.S.C.App. 1 et seq., or the International Emergency Economic Powers Act (IEEPA), 91 Stat. 1625, 50 U.S.C. § 1570 et seq. See TRIA § 201(d)(2). Both measures, TWEA and IEEPA, authorize the President to freeze the assets of "foreign enemy state[s]" and their agencies and instrumentalities. Brief for United States as Amicus Curiae 25. These blocking regimes "put control of foreign assets in the hands of the President so that he may dispose of them in the manner that best furthers the United States' foreign-relations and national-security interests." Ibid. (internal quotation marks omitted).
Invoking his authority under the IEEPA, the President, in February 2012, issued an Executive Order blocking "[a]ll property and interests in property of any Iranian financial institution, including the Central Bank of Iran, that are in the United States." Exec. Order No. 13599, 3 CFR 215 (2012 Comp.). The availability of these assets for execution, however, was contested.
To place beyond dispute the availability of some of the Executive Order No. 13599 -blocked assets for satisfaction of judgments rendered in terrorism cases, Congress passed the statute at issue here: § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 126 Stat. 1258, 22 U.S.C. § 8772. Enacted as a freestanding measure, not as an amendment to the FSIA or the TRIA, § 8772 provides that, if a court makes specified findings, "a financial asset ... shall be subject to execution ... in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" the acts of terrorism enumerated in the FSIA's terrorism exception. § 8772(a)(1). Section 8772(b) defines as available for execution by holders of terrorism judgments against Iran "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518(BSJ)(GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."
Before allowing execution against an asset described in § 8772(b), a court must determine that the asset is:
"(A) held in the United States for a foreign securities intermediary doing business in the United States;
"(B) a blocked asset (whether or not subsequently unblocked) ...; and
"(C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran...." § 8772(a)(1).
In addition, the court in which execution is sought must determine "whether Iran holds equitable title to, or the beneficial interest in, the assets ... and that no other person possesses a constitutionally protected interest in the assets ... under the Fifth Amendment to the Constitution of the United States." § 8772(a)(2).
B
Respondents are victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members. See App. to Pet. for Cert. 52a-53a; Brief for Respondents 6. Numbering more than 1,000, respondents rank within 16 discrete groups, each of which brought a lawsuit against Iran pursuant to the FSIA's terrorism exception. App. to Brief for Respondents 1a-2a. All of the suits were filed in United States District Court for the District of Columbia. Upon finding a clear evidentiary basis for Iran's liability to each suitor, the court entered judgments by default. See, e.g., Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 49 (2003). The majority of respondents sought redress for injuries suffered in connection with the 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon.
App. to Pet. for Cert. 21a. "Together, [respondents] have obtained billions of dollars in judgments against Iran, the vast majority of which remain unpaid." Id., at 53a. The validity of those judgments is not in dispute. Id., at 55a.
To enforce their judgments, the 16 groups of respondents first registered them in the United States District Court for the Southern District of New York. See 28 U.S.C. § 1963 ("A judgment ... may be registered ... in any other district.... A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner."). They then moved under Federal Rule of Civil Procedure 69 for turnover of about $1.75 billion in bond assets held in a New York bank account-assets that, respondents alleged, were owned by Bank Markazi. See App. to Pet. for Cert. 52a-54a, 60a, and n. 1; Second Amended Complaint in No. 10-CIV-4518 (SDNY), p. 6. This turnover proceeding began in 2008 when the terrorism judgment holders in Peterson, 264 F.Supp.2d 46, filed writs of execution and the District Court restrained the bonds. App. to Pet. for Cert. 14a-15a, 62a. Other groups of terrorism judgment holders-some of which had filed their own writs of execution against the bonds-were joined in No. 10-CIV-4518, the Peterson enforcement proceeding, through a variety of procedural mechanisms. It is this consolidated judgment-enforcement proceeding and assets restrained in that proceeding that § 8772 addresses.
Although the enforcement proceeding was initiated prior to the issuance of Executive Order No. 13599 and the enactment of § 8772, the judgment holders updated their motions in 2012 to include execution claims under § 8772. Plaintiffs' Supplemental Memorandum of Law in Support of Their Motion for Partial Summary Judgment in No. 10-CIV-4518 (SDNY).
Making the findings necessary under § 8772, the District Court ordered the requested turnover. App. to Pet. for Cert. 109a.
In reaching its decision, the court reviewed the financial history of the assets and other record evidence showing that Bank Markazi owned the assets. See id., at 111a-113a, and n. 17. Since at least early 2008, the court recounted, the bond assets have been held in a New York account at Citibank directly controlled by Clearstream Banking, S.A. (Clearstream), a Luxembourg-based company that serves "as an intermediary between financial institutions worldwide." Id., at 56a-57a (internal quotation makes omitted). Initially, Clearstream held the assets for Bank Markazi and deposited interest earned on the bonds into Bank Markazi's Clearstream account. At some point in 2008, Bank Markazi instructed Clearstream to position another intermediary-Banca UBAE, S.p.A., an Italian bank-between the bonds and Bank Markazi. Id., at 58a-59a. Thereafter, Clearstream deposited interest payments in UBAE's account, which UBAE then remitted to Bank Markazi. Id., at 60a-61a.
Resisting turnover of the bond assets, Bank Markazi and Clearstream, as the District Court observed, "filled the proverbial kitchen sink with arguments." Id., at 111a. They argued, inter alia, the absence of subject-matter and personal jurisdiction, id., at 73a-104a, asserting that the blocked assets were not assets "of" the Bank, see supra, at 1318, n. 3, and that the assets in question were located in Luxembourg, not New York, App. to Pet. for Cert. 100a. Several of their objections to execution became irrelevant following enactment of § 8772, which, the District Court noted, "sweeps away ... any ... federal or state law impediments that might otherwise exist, so long as the appropriate judicial determination is made." Id., at 73a; § 8772(a)(1) (Act applies "notwithstanding any other provision of law"). After § 8772's passage, Bank Markazi changed its defense. It conceded that Iran held the requisite "equitable title to, or beneficial interest in, the assets," § 8772(a)(2)(A), but maintained that § 8772 could not withstand inspection under the separation-of-powers doctrine. See Defendant Bank Markazi's Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment in No. 10-CIV-4518 (SDNY), pp. 1-3, 10-16.
"[I]n passing § 8772," Bank Markazi argued, "Congress effectively dictated specific factual findings in connection with a specific litigation-invading the province of the courts." App. to Pet. for Cert. 114a. The District Court disagreed. The ownership determinations § 8772 required, see supra, at 1320 - 1321, the court said, "[were] not mere fig leaves," for "it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha[d] some form of beneficial or equitable interest." App. to Pet. for Cert. 115a. Observing from the voluminous filings that "[t]here [was] ... plenty ... to [litigate]," the court described § 8772 as a measure that "merely chang[es] the law applicable to pending cases; it does not usurp the adjudicative function assigned to federal courts." Ibid. (internal quotation marks omitted). Further, the court reminded, "Iran's liability and its required payment of damages was ... established years prior to the [enactment of § 8772 ]"; "[a]t issue [here] is merely execution [of judgments] on assets present in this district." Id., at 116a.
The Court of Appeals for the Second Circuit unanimously affirmed. Peterson v. Islamic Republic of Iran, 758 F.3d 185 (2014). On appeal, Bank Markazi again argued that § 8772 violates the separation of powers "by compelling the courts to reach a predetermined result in this case." Id., at 191. In accord with the District Court, the Second Circuit responded that "§ 8772 does not compel judicial findings [or results] under old law"; "rather, it retroactively changes the law applicable in this case, a permissible exercise of legislative authority." Ibid. Congress may so prescribe, the appeals court noted, "even when the result under the revised law is clear." Ibid.
To consider the separation-of-powers question Bank Markazi presents, we granted certiorari, 576 U.S. ----, 136 S.Ct. 26, 192 L.Ed.2d 997 (2015), and now affirm.
II
Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Necessarily, that endowment of authority blocks Congress from "requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Congress, no doubt, "may not usurp a court's power to interpret and apply the law to the [circumstances] before it," Brief for Former Senior Officials of the Office of Legal Counsel as Amici Curiae 3, 6, for "[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret that rule," Marbury, 1 Cranch, at 177. And our decisions place off limits to Congress "vest[ing] review of the decisions of Article III courts in officials of the Executive Branch." Plaut, 514 U.S., at 218, 115 S.Ct. 1447 (citing Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792), and, e.g., Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 114, 68 S.Ct. 431, 92 L.Ed. 568 (1948) ). Congress, we have also held, may not "retroactively comman[d] the federal courts to reopen final judgments." Plaut, 514 U.S., at 219, 115 S.Ct. 1447.
A
Citing United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872), Bank Markazi urges a further limitation. Congress treads impermissibly on judicial turf, the Bank maintains, when it "prescribe[s] rules of decision to the Judicial Department ... in [pending] cases." Id., at 146. According to the Bank, § 8772 fits that description. Brief for Petitioner 19, 43. Klein has been called "a deeply puzzling decision," Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 2537, 2538 (1998). More recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) ; see id., at 437-438, 112 S.Ct. 1407 ; Plaut, 514 U.S., at 218, 115 S.Ct. 1447 (Klein 's "prohibition does not take hold when Congress 'amend[s] applicable law.' " (quoting Robertson, 503 U.S., at 441, 112 S.Ct. 1407 )). Section 8772, we hold, did just that.
Klein involved Civil War legislation providing that persons whose property had been seized and sold in wartime could recover the proceeds of the sale in the Court of Claims upon proof that they had "never given any aid or comfort to the present rebellion." Ch. 120, § 3, 12 Stat. 820; see Klein, 13 Wall., at 139. In 1863, President Lincoln pardoned "persons who ... participated in the ... rebellion" if they swore an oath of loyalty to the United States. Presidential Proclamation No. 11, 13 Stat. 737. One of the persons so pardoned was a southerner named Wilson, whose cotton had been seized and sold by Government agents. Klein was the administrator of Wilson's estate. 13 Wall., at 132. In United States v. Padelford, 9 Wall. 531, 543, 19 L.Ed. 788 (1870), this Court held that the recipient of a Presidential pardon must be treated as loyal, i.e., the pardon operated as "a complete substitute for proof that [the recipient] gave no aid or comfort to the rebellion." Thereafter, Klein prevailed in an action in the Court of Claims, yielding an award of $125,300 for Wilson's cotton. 13 Wall., at 132.
During the pendency of an appeal to this Court from the Court of Claims judgment in Klein, Congress enacted a statute providing that no pardon should be admissible as proof of loyalty. Moreover, acceptance of a pardon without disclaiming participation in the rebellion would serve as conclusive evidence of disloyalty. The statute directed the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon. 16 Stat. 235; R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 323, n. 29 (7th ed. 2015) (Hart and Wechsler). Affirming the judgment of the Court of Claims, this Court held that Congress had no authority to "impai[r] the effect of a pardon," for the Constitution entrusted the pardon power "[t]o the executive alone." Klein, 13 Wall., at 147. The Legislature, the Court stated, "cannot change the effect of ... a pardon any more than the executive can change a law." Id., at 148. Lacking authority to impair the pardon power of the Executive, Congress could not "direc[t] [a] court to be instrumental to that end." Ibid. In other words, the statute in Klein infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon-standards Congress was powerless to prescribe. See id., at 146-147 ; Robertson, 503 U.S., at 438, 112 S.Ct. 1407 (Congress may not "compe [l] ... findings or results under old law").
Bank Markazi, as earlier observed, supra, at 1323, argues that § 8772 conflicts with Klein . The Bank points to a statement in the Klein opinion questioning whether "the legislature may prescribe rules of decision to the Judicial Department ... in cases pending before it." 13 Wall., at 146. One cannot take this language from Klein "at face value," however, "for congressional power to make valid statutes retroactively applicable to pending cases has often been recognized." Hart and Wechsler 324. See, e.g., United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801). As we explained in Landgraf v. USI Film Products, 511 U.S. 244, 267, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the restrictions that the Constitution places on retroactive legislation "are of limited scope":
"The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, § 10, cl. 1, prohibits States from passing ... laws 'impairing the Obligation of Contracts.' The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a 'public use' and upon payment of 'just compensation.' The prohibitions on 'Bills of Attainder' in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause 'may not suffice' to warrant its retroactive application." Id., at 266-267, 114 S.Ct. 1483 (citation and footnote omitted).
"Absent a violation of one of those specific provisions," when a new law makes clear that it is retroactive, the arguable "unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give [that law] its intended scope." Id., at 267-268, 114 S.Ct. 1483. So yes, we have affirmed, Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases. See Plaut, 514 U.S., at 226, 115 S.Ct. 1447. Any lingering doubts on that score have been dispelled by Robertson, 503 U.S., at 441, 112 S.Ct. 1407 and Plaut, 514 U.S., at 218, 115 S.Ct. 1447.
Bank Markazi argues most strenuously that § 8772 did not simply amend pre-existing law. Because the judicial findings contemplated by § 8772 were "foregone conclusions," the Bank urges, the statute "effectively" directed certain factfindings and specified the outcome under the amended law. See Brief for Petitioner 42, 47. See also supra , at 1322 - 1323. Recall that the District Court, closely monitoring the case, disagreed. Supra, at 1321 - 1322; App. to Pet. for Cert. 115a ("[The] determinations [required by § 8772 ] [were] not mere fig leaves," for "it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha [d] some form of beneficial or equitable interest.").
In any event, a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. "When a plaintiff brings suit to enforce a legal obligation it is not any less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment, because the plaintiff's claim is uncontested or incontestable." Pope v. United States, 323 U.S. 1, 11, 65 S.Ct. 16, 89 L.Ed. 3 (1944). In Schooner Peggy, 1 Cranch, at 109-110, for example, this Court applied a newly ratified treaty that, by requiring the return of captured property, effectively permitted only one possible outcome. And in Robertson, 503 U.S., at 434-435, 438-439, 112 S.Ct. 1407 a statute replaced governing environmental-law restraints on timber harvesting with new legislation that permitted harvesting in all but certain designated areas. Without inquiring whether the new statute's application in pending cases was a "foregone conclusio[n]," Brief for Petitioner 47, we upheld the legislation because it left for judicial determination whether any particular actions violated the new prescription. In short, § 8772 changed the law by establishing new substantive standards, entrusting to the District Court application of those standards to the facts (contested or uncontested) found by the court.
Resisting this conclusion, THE CHIEF JUSTICE compares § 8772 to a hypothetical "law directing judgment for Smith if the court finds that Jones was duly served with notice of the proceedings." Post, at 1335 - 1336. Of course, the hypothesized law would be invalid-as would a law directing judgment for Smith, for instance, if the court finds that the sun rises in the east. For one thing, a law so cast may well be irrational and, therefore, unconstitutional for reasons distinct from the separation-of-powers issues considered here. See, e.g., infra, at 1327, n. 27. For another, the law imagined by the dissent does what Robertson says Congress cannot do: Like a statute that directs, in "Smith v. Jones," "Smith wins," supra, at 1323, n. 17, it "compel[s] ... findings or results under old law," for it fails to supply any new legal standard effectuating the lawmakers' reasonable policy judgment, 503 U.S., at 438, 112 S.Ct. 1407. By contrast, § 8772 provides a new standard clarifying that, if Iran owns certain assets, the victims of Iran-sponsored terrorist attacks will be permitted to execute against those assets. Applying laws implementing Congress' policy judgments, with fidelity to those judgments, is commonplace for the Judiciary.
B
Section 8772 remains "unprecedented," Bank Markazi charges, because it "prescribes a rule for a single pending case-identified by caption and docket number." Brief for Petitioner 17. The amended law in Robertson, however, also applied to cases identified by caption and docket number, 503 U.S., at 440, 112 S.Ct. 1407 and was nonetheless upheld. Moreover, § 8772, as already described, see supra, at 1319 - 1321, facilitates execution of judgments in 16 suits, together encompassing more than 1,000 victims of Iran-sponsored terrorist attacks. Although consolidated for administrative purposes at the execution stage, the judgment-execution claims brought pursuant to Federal Rule of Civil Procedure 69 were not independent of the original actions for damages and each claim retained its separate character. See Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 834-835, n. 10, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (postjudgment garnishment action brought under Rule 69 is part of the "process to enforce a judgment," not a new suit (alteration omitted and emphasis deleted)); 10 Cyclopedia of Federal Procedure § 36:8, p. 385 (3 ed. 2010) ("Proceedings in execution are proceedings in the action itself...."); 9A C. Wright & A. Miller, Federal Practice and Procedure § 2382, p. 10 (3d ed. 2008) ("[A]ctions do not lose their separate identity because of consolidation.").
The Bank's argument is further flawed, for it rests on the assumption that legislation must be generally applicable, that "there is something wrong with particularized legislative action." Plaut, 514 U.S., at 239, n. 9, 115 S.Ct. 1447. We have found that assumption suspect:
"While legislatures usually act through laws of general applicability, that
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_dissent
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
CHESSMAN v. PEOPLE et al.
No. 13451.
United States Court of Appeals Ninth Circuit.
May 28, 1953.
Rehearing Denied June 30, 1953.
Caryl Chessman, in pro. per.
Edmund G. Brown, Atty. Gen., and Clarence A. Linn, Asst. Atty. Gen., of Cal., for appellee.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
DENMAN, Chief Judge.
This is an appeal from an order of the United States District Court for the Northern District of California, Southern Division, Louis E. Goodman, Judge, denying a petition for a writ of habeas corpus.
The question presented is whether the district court erred in denying the application for the writ upon the ground that the state courts had adequately considered and disposed of the contentions made in the application.
Caryl Chessman was convicted in the California courts on 18 felony counts, including two for which the death penalty was imposed. The judgments were affirmed on appeal. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001. Simultaneously with the appeal, a petition for a writ of habeas corpus was filed with the state court. This petition was denied by a memorandum order and the United States Supreme Court denied certiorari, Chessman v. California, 343 U.S. 915, 72 S.Ct. 650.
Chessman’s petition is extremely lengthy and cites many instances in which he claims he was deprived of his rights under the Uni led States Constitution. These may be summarized as follows: (1) that Chessman was forced to go to trial unprepared; (2) that confessions obtained by force and intimidation and promises of partial immunity were used in evidence against him; (3) that said confessions were treated as “admissions” by the court and prosecution with the result that the jury was authorized to base a verdict of guilty upon these involuntary statements; (4) that the trial resulting in Chessman’s conviction was unfair; (5) that § 209 of the California Penal Code, under which the death penalties were imposed, is unconstitutional as applied to Chessman; (6) that petitioner was placed in double jeopardy; and (7) that due to extrinsic fraud practiced by the prosecuting attorney and the trial judge the transcript of record forwarded upon appeal to the state supreme court was incomplete and further that Chessman was not permitted to show that important parts of the proceedings were missing or were incorrectly recorded.
(1) Chessman’s contention that he was forced to go to trial unprepared was adequately disposed of by the state courts.
Chessman contends that he was forced to go to trial unprepared, that he had no attorney and that prison rules did not permit him access to law books or a chance to interview witnesses. This point was adequately considered and disposed of by the California Supreme Court in its opinion in Chessman’s appeal, People v. Chessman, 38 Cal.2d 166, 172-174, 238 P.2d 1001. We have examined the determination of the California court and find no fault therein. We therefore accept the State court’s determination. Brown v. Allen, 344 U.S. 443, 507-508, 73 S.Ct. 397, 437. (Opinion of Justice Frankfurter).
(2) Chessman’s contention that confessions obtained by force and intimidation and promises of partial immunity were used in evidence against him was adequately disposed of by the state courts.
As is shown by the opinion of the California Supreme Court in Chessman’s appeal, People v. Chessman, supra, 38 Cal.2d at pages 178-182, 238 P.2d 1001, the trial court in the first instance and the jury both decided the issue of the voluntariness of the confession against Chessman. While Justice Frankfurter stated that “the question whether established primary facts underlying a confession prove that the confession was coerced or voluntary cannot rest o,n the State decision” (citing Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872), Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 437, 446, where, as here, the evidence as to these primary facts is conflicting the determination of the triers of fact will be accepted unless “it is so lacking in support in the evidence that to give it effect would work fhat fundamental unfairness which is at war with due process.” Lisenba v. People of State of California, 314 U.S. 219, 238, 62 S.Ct. 280, 291, 86 L.Ed. 166. The same procedures for determining the voluntariness of the confession were used in this case as were used in the Lisenba case, hence there is nothing for the federal court to consider.
(3) Chessman’s contention that the confessions were treated as admissions with the result that the jury was authorized to base a verdict of guilty upon involuntary statements is wholly without merit.
As is shown above, the statements or confessions of Chessman were found to be voluntary and that finding is controlling here. Hence it makes no difference whether the statements were labeled “confessions” or “admissions”. On this issue Chessman has failed to make out a prima facie case. Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 397.
(4) Chessman’s contention that the trial resulting in 'his conviction was unfair was adequately disposed of by the state court.
Chessman’s contention that the trial was unfair is based upon the following allegations: that 18 felony counts were consolidated for one trial, that he was required to remain at the counsel table while interviewing witnesses, that he was denied a daily transcript of record while the prosecutor was able to obtain one, and that the court refused to allow an attorney as well as Chessman to argue to the jury. These contentions were .all considered by the state supreme court, People v. Chessman, supra (consolidation of counts, 38 Cal.2d at page 175, 238 P.2d 1006, requirement that Chessman remain at counsel table, 38 Cal.2d at page 176, 238 P.2d at page 1007, denial of Chessman’s motion for daily transcript, 38 Cal.2d at pages 176-177, 238 P.2d 1007-1008, and refusal to allow an attorney as well as Chessman to argue to the jury, 38 Cal.2d at pages 188-189, 238 P.2d at pages 1014-1015.
(5) Chessman’s contention that § 209 of the California Penal Code is unconstitutional as applied to him is without merit.
Chessman was charged with and convicted of kidnapping for the purpose of robbery in four counts. Where the kidnappee suffers bodily harm, the penalty may be death under Calif.Pen.Code, § 209. Chessman has been found guilty of holding up couples in parked cars, forcing the woman to go a short distance away from the car, forcefully committing an act of a sexual nature, and robbing the woman while she was removed from the car. The California Supreme Court, in a companion case involving his co-defendant, decided that in-such circumstances § 209 was applicable, People v. Knowles, 35 Cal.2d 175, 217 P.2d 1. This is a matter of statutory construction and presents no constitutional issue.
(6) Chessman’s contention that he was placed in double jeopardy is without merit.
It is true that Chessman was convicted of the crime of rape when the offense was an integral part of the crime of kidnapping and imposing bodily harm. It is also true that Calif.Pen.Code § 654 forbids punishing one separately for acts which are a part of another crime for which that person is also being punished. However, as is pointed out by the California Supreme Court, “since defendant is subject to two validly imposed death sentences, no purpose would be served by reversal of other judgments of conviction.” People v. Chessman, 38 Cal.2d at page 193, 238 P.2d at page 1017.
(7) Chessman’s contention that due to extrinsic fraud by the trial judge and the prosecutor, the transcript of record forwarded upon appeal to the state supreme court was incomplete and that he was not permitted to show that important parts of the proceeding were missing or incorrectly recorded presents no issue upon which he is entitled to a hearing.
Chessman’s contention that the transcript of record on appeal was incomplete and inaccurate is based upon the following allegations: That it was prepared by a method unknown to the law (a question of state law, determined adversely to him, Id.) ; and that extrinsic fraud was employed both in the preparation of the record and in getting the California Supreme Court to accept it for use on appeal. This latter charge is the only one which Chessman can urge in the federal courts.
After the judgment of conviction was entered, the court proceeded without Chessman’s participating to prepare the record on appeal. The reporter of the trial proceedings had died without transcribing his shorthand notes and the transcript was made up by another reporter aided by other testimony. He contends that collusion between the trial judge, the prosecuting attorney and the transcribing reporter prevented a true record — one which would have shown ilie tiulli of his oilier allegations — from being presented to the California Supreme Court. lie claims that the Fourteenth Amendment was violated in that he was deprived of his right of personal participation in the proceeding in which the record was settled, and that the prosecuting attorney, who testified in the preparation of the record, perjured himself.
There is no merit in the contention that the due process provisions of the Fourteenth Amendment were violated. The Constitution gives no right to appear in person or by counsel on a criminal appeal. Whether to grant an appeal, and the terms upon which it will be granted are purely matters of local law over which federal courts have no control. See Andrews v. Swartz, 156 U.S. 272, 274-275, 15 S.Ct. 389, 391, 39 L.Ed. 422, where the Court said:
“The statute of New Jersey eniitled ‘An act regulating proceedings in criminal cases,’ approved March 27, 1874 (Revision [of 1877], p. 266), which declares that writs of error in criminal cases punishable with death shall be considered writs of grace, and not writs of right (Id. p. 283), was brought forward from an act passed March 6, 1795. [Laws of New Jersey] (Revision 1821, pp. 184, 186, § 13).
“The contention of appellant is that such a statute is in violation of the constitution of the United States. If it were necessary, upon this appeal, to consider that question, we would only repeat what was said in McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913 [38 L.Ed. 867]: ‘An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.’ ‘It is therefore clear that the right of appeal may be accorded by the state to the accused upon such terms as, in its wisdom, may be proper;’ and ‘whether an appeal should be allowed, and, if so, under what circumstances or on what conditions, are matters for each state to' determine for itself.’ ”
And that there can be no denial of due process in the procedure used to settle the record on appeal, see Dowdell v. United States, 221 U.S. 325, 328-329, 31 S.Ct. 590, 55 L.Ed. 753.
The judgment is affirmed.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_usc1
|
11
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
In re TENNESSEE PUB. CO. TENNESSEE PUB. CO. v. AMERICAN NAT. BANK et al. CARPENTER v. TENNESSEE PUB. CO.
Nos. 7266, 7267.
Circuit Court of Appeals, Sixth Circuit.
Feb. 13, 1936.
ALLEN, Circuit Judge, dissenting in part.
Lewis S. Pope and Albert Roberts, both of Nashville, Tenn. (Lewis S. Pope, White & Howard, and Roberts & Roberts, all of Nashville, Tenn., on the brief), for Tennessee Pub. Co.
Cecil Sims, of Nashville, Tenn. (Bass, Berry & Sims, of Nashville, Tenn., on the brief), for American Nat. Bank and Paul M. Davis.
H. G. Fowler, of Knoxville, Tenn. (J. A. Fowler and S. F. Fowler, both of Knoxville, Tenn., on the brief), for receiver C. O. Carpenter.
Charles C. Trabue and Thomas H. Malone, both of Nashville, Tenn., for M. & O. Paper Co.
Pitts, McConnico, Hatcher & Waller, of Nashville, Tenn., for Ingram and Bradford.
W. E. Norvell, of Nashville, Tenn., for American Union Bank and others.
Before MOORMAN, STMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The main appeal is from a final order and decree dismissing the debtor’s petition and plan for corporate reorganization under the provisions of section 7713 of the Bankruptcy Act, as amended (11 U.S.C.A. § 207). The appeal was allowed by the District Judge, but the debtor later, conceiving the appeal to be governed by section 24b, as amended (11 U.S.C.A. § 47 (b), filed a petition with this court for leave. It appearing that the petition was timely, we treat the appeal as having been allowed, and an order to that effect may be entered. The cross-appeal is from a final order incorporated in the decree overruling a motion to dismiss the debtor’s petition on the ground that it was not filed in good faith as provided by the statute. The cross-appeal was likewise allowed by the District Judge, but no petition, timely or otherwise, for its allowance here was presented. A motion to dismiss the cross-appeal is before us. Regarding the main appeal as properly allowed under section 24b, Vitagraph, Inc., v. St. Louis Properties Corp., 77 F.(2d) 590 (C.C.A.8); Credit Alliance Corp. v. Atlantic, Pacific & Gulf Refining Co., 77 F.(2d) 595 (C.C.A.8); Campbell v. Alleghany Corp., 75 F.(2d) 947, 955 (C.C.A.4); Humber v. Bankers’ Trust Co., 70 F.(2d) 265 (C.C.A.6), and regarding it also, as will later appear, as raising, the question generally of the validity of the decree, whether based upon valid or invalid grounds, we give no consideration to the cross-appeal, and it may be dismissed.
The Tennessee Publishing Company, designated as the debtor, according to the statute, had for many years published both a morning and an evening newspaper in Nashville, Tenn. On March 3, 1933, by general creditors’ bill, its affairs were placed in charge of a receiver appointed by the District Court. The proceedings were filed by appellee Carpenter, receiver ofoa closed bank, which held $28,-000 of the debtor’s bonds, which were part of an issue of $750,000 dated November 1, 1928. The rate of interest borne by the bonds and their maturity dates nowhere appear, but they were secured by a deed of trust executed by the debt- or, which provided that upon default in the payment of interest or principal the security might be foreclosed and sold at public auction, either through proceedings in equity or by advertisement.
The equity bill averred operating losses sustained by the debtor during the years 1929 to 1932. Losses continued during the receivership, but at a reduced rate. The usual reference to a master for consideration of claims followed, with the result that claims were filed in the total amount - of approximately $1,500,000. A final hearing was set for June 6, 1935, and it was then the reasonable expectation of all parties m interest that a sale of assets would be ordered and the receivership terminated.
On June 5, 1935, Carfnack, son of a former editor of the debtor’s papers, acquired from the Leas, then its owners, all of the debtor’s common stock. He immediately had himself elected president, and instituted the debtor proceedings here involved under section 77B. His first reorganization plan being objected to by the various classes of creditors, a second and a third plan of reorganization with modifications thereof followed. All were vigorously opposed by each interest concerned save for approval by a relatively small number of unsecured creditors. Not any of the bondholders gave assent to the plans proposed, and about 50 per cent, of the unsecured creditors have affirmatively opposed all reorganization plans.
Section 77B provides for a scheme of corporate reorganization similar in many of its aspects to that provided for the reorganization of railroads engaged in interstate commerce by section 77 (11 U.S.C.A. § .205), discussed and held constitutionally valid in general scope and application in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Railway Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110. It provides that .upon the filing of a petition for reorganization the court shall enter an order approving its filing if satisfied that the petition complies with the section and has been filed in good faith. The plan of reorganization shall- include provisions modifying or altering the rights of creditors generally, or any class of them, either through the issuance of new securities or otherwise. Subsection (e), of section 77B, 11 U.S.C.A. § 207 (c), in so far as pertinent, is as follows:
“A plan of reorganization shall not be confirmed until it has been accepted in writing, * * * and such acceptance shall have been filed in the proceeding by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan: * * * Provided, however, That such acceptance shall not be requisite to the confirmation of the plan by any creditor or class of creditors (a) whose claims are not affected by the plan, or (b) if the plan makes provision for the payment of their claims in cash in full, or (c) if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided, in subdivision (b), clause (5), of this section.”
In so far as the reorganization permitted by section 77B requires approval by two-thirds of the creditors of each class and in so far as such approval is not requisite to confirmation from creditors whose claims are not affected or for the payment of which cash is provided, 77B follows substantially the provisions of section 77. It departs from that section in clause (c) of the proviso, which makes approval of creditors unnecessary “if provision is made in the plan for the protection of the interests, claims, or liens of such creditor or class of creditors in the manner provided in subdivision (b), clause (5), of this section.” 11 U.S.C.A. § 207 (e) (1) (c).
It therefore becomes necessary to consider subsection (b), clause (5), 11 U.S.C.A. § 207 (b) (5), which provides that the plan of reorganization “shall provide in respect of each class of creditors of which less than two thirds in amount shall accept such plan (unless the claims of such class of creditors will not be affected by the plan, or the plan makes provision for the payment of their claims in cash in full), provide adequate protection for the realization by them of the value of their interests, claims, or liens, if the property affected by such interests, claims, or liens is dealt with by the plan, either as provided in the plan (a) by the transfer or sale of such property subject to such interests, claims, or liens, or by the retention of such property by the debtor subject to such interests, claims, or liens, or (b) by a sale free of such interests, claims, or liens at not less than a fair upset price and the transfer of such interests, claims, or liens to the proceeds of such sale; or (c) by appraisal and payment either in cash of the value either of such interests, claims, or liens, or, at the objecting creditors’ election, of the securities allotted to such interests, claims, or liens under the plan, if any shall be so allotted; or (d) by such method as will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.”
It will be observed that section 77B, unlike section 77, furnishes a method by which a reorganization plan may be put into effect in the event that the debtor is unable to secure consent to its plan of two-thirds of each class of creditors to be affected thereby, not only without their approval, but, by necessary implication, despite their opposition. The plan may provide under subsection (b) (S) for the sale of the property subject to lien, for its sale free of liens and the transfer of the liens to the proceeds, or for the method recited in clauses (c) and (d). With the first two of the methods incorporated in the subsection, we are not concerned, because - the debtor does not desire to have the property sold either free from or subject to liens. It wishes to secure possession of the property and to resume its operation. We are concerned, therefore, only with the methods provided by which the debtor may regain its property without consent of creditors, have it appraised, and then relieve itself of obligation by paying each of them in cash, either (1) of the value of their interests, claims, or liens; or (2) at the creditors’ election (of the value) of the securities allotted to such interests, claims, or liens, if any shall be so allotted; or (3) by such method as will in the opinion of the judge equitably and fairly provide such protection.
The present debtor’s several plans of reorganization, particularly the third, arc in recognition of the futility under existing circumstances of securing the consent of two-thirds of its creditors of each class. It proceeds upon the assumption that such consent is not necessary by framing its reorganization plans under the alternative method provided by subsection (b) (5). We assume it to be unnecessary to give detailed consideration to the first or second plan, for, faced with a contention that neither is feasible, and that each would invade vested constitutional rights, it presented its third plan and modifications thereof, and we may assume that this represents up to the time of the decree its ultimate effort to repel attack upon the feasibility of reorganization, and upon asserted invalidity in the application of the statute.
We confess our inability to understand the debtor’s proposed reorganization plan in all of its phases, even after diligent study, effort to separate argument from concrete proposals, and an earnest attempt to reconcile apparently conflicting clauses. This much, however, seems reasonably clear: The debtor desires to have all the property which for two years has been in the possession of the equity receiver, including unmortgaged property, returned to it, subject to such liens as the court shall determine. It proposes that the bondholders shall have their securities scaled down to 80 per cent, of their face value, and that the court shall fix a reasonable rate of interest in place of the agreed interest. Nonassenting bondholders are to have the value of their securities fixed by the court, and to have a lien on the mortgaged property for such value, though it is also proposed to pay non-assenting' bondholders such ascertained value in cash.. The debtor proposes to pay for the unmortgaged property in the hands of the receiver the sum of $40,000 in cash at a time to be fixed by the court. For the further purpose of protecting bondholders, the debtor proposes to deposit $10,-000 to pay interest in advance upon the bonds for a three months’ period, but nothing is provided in the plan with respect to the defaulted interest upon the bonds during the two years that the debt- or’s properties have been in the hands of the receiver. Then follow provisions for a bond issue and for class A and class B preferred stock, out of the proceeds of which present unsecured creditors and preferred stockhdders are to be compensated. We make no effort to state them, for they are wholly incomprehensible. The court is also asked to reascertain the present holders of the debtor s mortgage bonds, and the amount due each bondholder although a judicial determination as to these matters has already been had m the equity proceedings by a master, with his report presumably confirmed by the court without objection thereto by the debtor, though a party to the receivership proceedings. From the argument, interwoven with the proposals of the submitted plan, it appears that the debtor is informed that 1 , .. . ,, ,, . some of the present bondholders have paid , . , j . , A . for their bonds an amount less than their , . , ., . , . „ face value, and it appears, mferentially . , . A' ’. at least, that the debtor desires the court , „ , ^ , i, ,, , to fix the amount due bondholders who , r . ., , have paid for their holdings since the be- ■ . , ?. . ginmng of the receivership an amount f , , 1 .1 •. less than their face value,- the amount ., , ^ , , so paid, and then have such amount scaled j ! on ^ „ ur down to 80 cents upon the dollar. We .,,, ^ . . are pointed to-no provision of the stat-t , • 1 ^ , . . ute which permits this to be done, and . , . . . - £ -1 , ,. , ’ mdependent inquiry fails to disclose any. 1 ^ J J
The reorganization plan is opposed on the ground that it is not presented in good faith, and that any scaling down of secured indebtedness or of agreed interest or denial of the right of lienholders to have the mortgaged property sold at public sale in accordance with the terms of the trust deed, is taking the property of the bondholders without due process in violation of the Fifth Amendment to the Constitution of the United States. While the court found the plan to have been presented in good faith, it is urged that the court erroneously applied the law; that good faith is not a question of honest motive or intention, but is to be determined by the feasibility of the plan and a reasonable expectation that it will be successful, in reliance upon Manati Sugar Company v. Mock et al., 75 F.(2d) 284 (C.C.A.2), and In re 235 West 46th Street Company, Inc., 74 F.(2d) 700 (C.C.A.2). The District Judge rejected the contention as to absence of good faith, but declared subsection (b) (5), in so far as it permits adjustment of liens without the consent of creditors, Constitutionally invalid, and dismissed the petition,
We have first t0 consider whether the tion of the debtor,s d faith in submitti its proposed plan of organization is j before this court the ma¡n L This involves a con_ sideration as t0 whether the decision be_ low that question involves ^ issue of Iaw izable n al under sec_ üon 24b_ It ig dear from tbe court>s memoranda that in decidi the issue of d faith it was gu¡ded mainl b a con_ sideration of the honesty of purpose on ^ of the debtor in submitting its ^ Section 77B does not undertake t0 define d faitbL We think it clea bowever5 in agreement with the Second drcuit that something more than sincerity , . . • , j j intention was intended. The purpose f ...... ... A f, , of the statute is to relieve distressed debt- ,- , . . < ., or corporations and to provide the me- , . ¿ , chames for reorganization where reason- ,, , .. , ,. , , , able expectation of continued useful ex- . . 1.^-1 . •. • , rr,, . istence may be fairly entertained. This , . J . . , being so, something more must be demon- . ® , (. ,, , , . 1. strated by the debtor than mere honesty r, x TJ. , ,, or sincerity of purpose. If not, then the . . ., way is open to the exploitation of every - . r . . -. , J involved corporation by visionaries whose , ...... - ,- illusory and optimistic imaginations out- . 1 . , .a , ., . run their business judgments, and the 111- . , r , J... . ’ ... . , terest of every legitimate creditor is at the mercy of debtors whose sole hope of financial salvation is an abiding faith in miracles. If we are right in this, there was erroneous application of the law in the finding of good faith, and the decree dismissing the petition should upon familiar principles governing appeals in equity be affirmed if right, however erroneous may be any given conclusion of law.
It appears from the record that the total assets of the debtor upon fair appraisal are worth less than $300,000. The bonded indebtedness exceeds $900,000, and the unsecured indebtedness is more than $300,000. To this must now be added the cost and expenses of the receivership. Moreover, the receiver has been operating at a loss, and the debtor concedes that it also will for a time operate at a loss; its most optimistic undertaking being, if the property is restored to it, to reduce current losses 25 per cent. When these figures are considered together with the vagueness of detail in the proposed plan, the doubt that exists as to whether under section 77B there may now be a reopening of the adjudication of the claims against the debtor in the equity proceeding, it seems clear to us that the proposed plan is not a workable plan, offers no reasonable prospect for successful rehabilitation of the debtor, and is in consequence not, in the sense the phrase is used in the section, presented in good faith.
Having concluded that the plan fails to meet the statutory test, it may appear that discussion should end here with mandate for affirmance of the decree, and that upon familiar principles no holding as to constitutionality of the assailed subsection is required. As was said by the Supreme Court in Howat v. Kansas, 258 U.S. 181, 184, 42 S.Ct. 277, 279, 66 L.Ed. 550, “Obviously we should not pass upon the constitutional validity of an act * * * unless the case before us requires it,” and in Euclid v. Ambler Realty Co., 272 U.S. 365, 397, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016, “In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue.” With profound deference to the canons of self-restraint to which courts subordinate their high power to inquire into the constitutional validity of acts of Congress, we have carefully explored the possibility of avoiding the constitutional question here presented. We are confronted with difficulty.
Faced with attack upon the feasibility of its plan of reorganization, the debt- or has repeatedly presented alternatives and modifications. This is its right, not only by virtue of the liberal spirit of the statute, but by the express language of subsection (f) (7) of section 77B (11 U.S.C.A. § 207 (f) (7), which provides that before or after a plan is confirmed changes -and modifications may be proposed therein by any party in interest. The debtor, having finally received approval of the court upon the good faith of its latest plan, proceeded no further in its efforts to comply with the statutory requirement in that respect. Were we now to rest - decision solely upon lack of good faith, it would seem appropriate to permit further proposals, for the debt- or, having been misled by the court, should not be precluded from further effort to meet statutory requirements. Moreover, we see no legal impediment to submission by the debtor, or at least by a group of friendly creditors, of an entirely new plan of reorganization not heretofore considered and adjudicated. In either event the constitutional question would remain open for ultimate decision upon perhaps no better presentation than at present, and the submission of amendments to more fully demonstrate good faith, purely academic and fruitless. In the meanwhile the property of the debtor and the security of the lienholders will be further depleted by operating losses of the receiver. We see no escape therefore from present decision upon the validity of subsection (b) (5).
The constitutionality of section 77B in its general scope and application is not here assailed, and, in view of the decision in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pac. Railway, supra, is perhaps not open to successful assault. That case, however, goes no farther in its consideration of the due process clause of the Fifth- Amendment than to hold that statutory provisions permitting delay in the enforcement of contracts affect only the remedy, and deals with a statute which does not permit adjustments of liens without lienholders’ consent. Such delay in the application of remedies impairs no vested right, and this was also the rationale of the decision in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 89 A.L.R. 1481, in consideration of the due process clause of the Fourteenth Amendment. We are here concerned only with the validity of a clause which provides for adjustment of debts without the consent of creditors. It has long been settled that provisions in bankruptcy statutes authorizing compositions have never been held to invalidate them. This is because a composition is a matter of agreement between the bankrupt and his creditors as a class, with the will of the majority imposed upon the minority. In re Lane (D.C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U.S. 447, 452, 35 S.Ct. 636, 59 L.Ed. 1042.
We confine ourselves to the provisions of subsection (b) (5), which outline a method for adjustment of claims of nonassenting creditors, and inquire as to their validity in the light of the due process clause. Upon this issue we view' the decision of the Supreme Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, controlling. Here, under Tennessee law, as there under Kentucky law, the lien holders had the .right under their contract to retain the lien until the indebtedness secured was paid, the right to realize upon the security by a judicial public sale, the right to determine when such sale should be held, subject' only to the discretion of the court, the right to protect their interest in the property by bidding at such sale, the right to have the mortgaged property devoted primarily to the satisfaction of the debt; and the right to control the property meanwhile during the period of default, subject only to the discretion of the court, and to have the rents and profits during such period applied to the satisfaction of the debt. These rights are substantive property rights, and any invasion of them under the authority of the present statute is as clearly violative of the due process clause of the Fifth Amendment as it was in the Radford Case. We have no occasion to renew our excursion into the history of bankruptcy legislation or to again undertake that realistic approach to the problem that we ventured upon in the Rad-ford Case when ito was considered by us (74 F.(2d) 576). That manner of approach was rejected by the Supreme Court as an aid to solution, and so must we now reject it when it is again urged upon us.
We hold subsection (b) (5) of section 77B (11 U.S.C.A. § 207 (b) (5) of the Bankruptcy Act unconstitutional and invalid in the respects indicated. Stripped of invalidity, the section is still an operable statute, and as to validity in its general scope and application there is no occasion for comment other than has been indicated.
The decree below is affirmed.
ALLEN, Circuit Judge (concurring).
I concur in the conclusion and in that part of the decision which relates to the unconstitutionality of the statute. The decision in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A.L.R. 1106, compels this result. I dissent, however, from that part of. the opinion which defines “good faith” as requiring’ feasibility of the plan proposed. Congress, in enacting the statute, required simply that the District Judge should be satisfied of “good faith.” In so doing, it doubtless bore in mind the fact that in innumerable cases covering every kind of legal situation, the courts of this country, from the highest to the lowest, have defined good faith as meaning honesty of purpose. It is an unfortunate circumstance that integrity and business acumen are not always united. In this statute the Congress required integrity, and the District Judge correctly found that good faith was shown in the submission of this plan.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_respondent
|
028
|
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.
DOE et al. v. BOLTON, ATTORNEY GENERAL OF GEORGIA, et al.
No. 70-40.
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BrenNAN, Stewart, Marshall, and Powell, JJ., joined. Burger, C. J., post, p. 207, and Douglas, J., post, p. 209, filed concurring opinions. White, J., filed a dissenting opinion, in which RehNQuist, J., joined, post, p. 221. RehN-quist, J., filed a dissenting opinion, post, p. 223.
Margie Pitts Mames reargued the cause for appellants. With her on the briefs were Reber F. Boult, Jr., Charles Morgan, Jr., Elizabeth Roediger Rindskopf, and Tobiane Schwartz.
Dorothy T. Beasley reargued the cause for appellees. With her on the brief were Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Joel Feldman, Henry L. Bowden, and Ralph H. Witt.
Briefs of amici curiae were filed by Roy Lucas for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Delores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for. the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by Alfred L. Scardan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarlcy for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; by Robert E. Dunne for Robert L. Sassone; and by Ferdinand Buckley pro se.
Mr. Justice Blackmun
delivered the opinion of the Court.
In this appeal, the criminal abortion statutes recently enacted in Georgia are challenged on constitutional grounds. The statutes are §§ 26-1201 through 26-1203 of the State’s Criminal Code, formulated by Georgia Laws, 1968 Session, pp. 1249, 1277-1280. In Roe v. Wade, ante, p. 113, we today have struck down, as constitutionally defective, the Texas criminal abortion statutes that are representative of provisions long in effect in a majority of our States. The Georgia legislation, however, is different and merits separate consideration.
I
The statutes in question are reproduced as Appendix A, post, p. 202. As the appellants acknowledge, the 1968 statutes are patterned upon the American Law Institute’s Model Penal Code, § 230.3 (Proposed Official Draft, 1962), reproduced as Appendix B, post, p. 205. The ALI proposal has served as the model for recent legislation in approximately one-fourth of our States. The new Georgia provisions replaced statutory law that had been in effect for more than 90 years. Georgia Laws 1876, No. 130, § 2, at 113. The predecessor statute paralleled the Texas legislation considered in Roe v. Wade, supra, and made all abortions criminal except those necessary “to preserve the life” of the pregnant woman. The new statutes have not been tested on constitutional grounds in the Georgia state courts.
Section 26-1201, with a referenced exception, makes abortion a crime, and § 26-1203 provides that a person convicted of that crime shall be punished by imprisonment for not less than one nor more than 10 years. Section 26-1202 (a) states the exception and removes from § 1201’s definition of criminal abortion, and thus makes noncriminal, an abortion “performed by a physician duly licensed” in Georgia when, “based upon his best clinical judgment ... an abortion is necessary because:
“(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
“(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
“(3) The pregnancy resulted from forcible or statutory rape.”
Section 26-1202 also requires, by numbered subdivisions of its subsection (b), that, for an abortion to be authorized or performed as a noncriminal procedure, additional conditions must be fulfilled. These are (1) and (2) residence of the woman in Georgia; (3) reduction to writing of the performing physician’s medical judgment that an abortion is justified for one or more of the reasons specified by § 26-1202 (a), with written concurrence in that judgment by at least two other Georgia-licensed physicians, based upon their separate personal medical examinations of the woman; (4) performance of the abortion in a hospital licensed by the State Board of Health and also accredited by the Joint Commission on Accreditation of Hospitals; (5) advance approval by an abortion committee of not less than three members of the hospital’s staff; (6) certifications in a rape situation; and (7), (8), and (9) maintenance and confidentiality of records. There is a provision (subsection (c)) for judicial determination of the legality of a proposed abortion on petition of the judicial circuit law officer or of a close relative, as therein defined, of the unborn child, and for expeditious hearing of that petition. There is also a provision (subsection (e)) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.
II
On April 16, 1970, Mary Doe, 23 other individuals (nine described as Georgia-licensed physicians, seven as nurses registered in the State, five as clergymen, and two as social workers), and two nonprofit Georgia corporations that advocate abortion reform instituted this federal action in the Northern District of Georgia against the State’s attorney general, the district attorney of Fulton County, and the chief of police of the city of Atlanta. The plaintiffs sought a declaratory judgment that the Georgia abortion statutes were unconstitutional in their entirety. They also sought injunctive relief restraining the defendants and their successors from enforcing the statutes.
Mary Doe alleged:
(1) She was a 22-year-old Georgia citizen, married, and nine weeks'pregnant. She had three living children. The two older ones had been placed in a foster home because of Doe’s poverty and inability to care for them. The youngest, born July 19, 1969, had been placed for adoption. Her husband had recently abandoned her and she was forced to live with her indigent parents and their eight children. She and her husband, however, had become reconciled. He was a construction worker employed only sporadically. She had been a mental patient at the State Hospital. She had been advised that an abortion could be performed on her with less danger to her health than if she gave birth to the child she was carrying. She would be unable to care for or support the new child.
(2) On March 25, 1970, she applied to the Abortion Committee of Grady Memorial Hospital, Atlanta, for a therapeutic abortion under § 26-1202. Her application was denied 16 days later, on April 10, when she was eight weeks pregnant, on the ground that her situation was not one described in § 26-1202 (a).
(3) Because her application was denied, she was forced either to relinquish “her right to decide when and how many children she will bear” or to seek an abortion that was illegal under the Georgia statutes. This invaded her rights of privacy and liberty in matters related to family, marriage, and sex, and deprived her of the right to choose whether to bear children. This was a violation of rights guaranteed her by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The statutes also denied her equal protection and procedural due process and, because they were unconstitutionally vague, deterred hospitals and doctors from performing abortions. She sued “on her own behalf and on behalf of all others similarly situated.”
The other plaintiffs alleged that the Georgia statutes “chilled and deterred” them from practicing their respective professions and deprived them of rights guaranteed by the First, Fourth, and Fourteenth Amendments. These plaintiffs also purported to sue on their own behalf and on behalf of others similarly situated.
A three-judge district court was convened. An offer of proof as to Doe’s identity was made, but the court deemed it unnecessary to receive that proof. The case was then tried on the pleadings and interrogatories.
The District Court, per curiam, 319 F. Supp. 1048 (ND Ga. 1970), held that all the plaintiffs had standing but that only Doe presented a justiciable controversy. On the merits, the court concluded that the limitation in the Georgia statute of the “number of reasons for which an abortion may be sought,” id., at 1056, improperly restricted Doe’s rights of privacy articulated in Griswold v. Connecticut, 381 U. S. 479 (1965), and of “personal liberty,” both of which it thought “broad enough to include the decision to abort a pregnancy,” 319 F. Supp., at 1055. As a consequence, the court held invalid those portions of §§ 26-1202 (a) and (b) (3) limiting legal abortions to the three situations specified; § 26-1202 (b)(6) relating to certifications in a rape situation; and § 26-1202 (c) authorizing a court test. Declaratory relief was granted accordingly. The court, however, held that Georgia’s interest in protection of health, and the existence of a “potential of independent human existence” (emphasis in original), id., at 1055, justified state regulation of “the manner of performance as well as the quality of the final decision to abort,” id., at 1056, and it refused to strike down the other provisions of the statutes. It denied the .request for an injunction, id., at 1057.
Claiming that they were entitled to an injunction and to broader relief, the plaintiffs took a direct appeal pursuant to 28 U. S. C. § 1253. We postponed decision on jurisdiction to the hearing on the merits. 402 U. S. 941 (1971). The defendants also purported to appeal, pursuant to § 1253, but their appeal was dismissed for want of jurisdiction. 402 U. S. 936 (1971). We are advised by the appellees, Brief 42, that an alternative appeal on their part is pending in the United States Court of Appeals for the Fifth Circuit. The extent, therefore, to which the District Court decision was adverse to the defendants, that is, the extent to which portions of the Georgia statutes were held to be unconstitutional, technically is not now before us. Swarb v. Lennox, 405 U. S. 191, 201 (1972).
III
Our decision in Roe v. Wade, ante, p. 113, establishes (1) that, despite her pseudonym, we may accept as true, for this case, Mary Doe’s existence and her pregnant state on April 16, 1970; (2) that the constitutional issue is substantial; (3) that the interim termination of Doe’s and all other Georgia pregnancies in existence in 1970 has not rendered the case moot; and (4) that Doe presents a justiciable controversy and has standing to maintain the action.
Inasmuch as Doe and her class are recognized, the question whether the other appellants — physicians, nurses, clergymen, social workers, and corporations— present a justiciable controversy and have standing is perhaps a matter of no great consequence. We conclude, however, that the physician-appellants, who are Georgia-licensed doctors consulted by pregnant women, also present a justiciable controversy and do have standing despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes. The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F. 2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972).
In holding that the physicians, while theoretically possessed of standing, did not present a justiciable controversy, the District Court seems to have relied primarily on Poe v. Ullman, 367 U. S. 497 (1961). There, a sharply divided Court dismissed an appeal from a state court on the ground that it presented no real controversy justifying the adjudication of a constitutional issue. But the challenged Connecticut statute, deemed to prohibit the giving of medical advice on the use of contraceptives, had been enacted in 1879, and, apparently with a single exception, no one had ever been prosecuted under it. Georgia’s statute, in contrast, is recent and not moribund. Furthermore, it is the successor to another Georgia abortion statute under which, we are told, physicians were prosecuted. The present case, therefore, is closer to Epperson v. Arkansas, 393 U. S. 97 (1968), where the Court recognized the right of a school teacher, though not yet charged criminally, to challenge her State’s anti-evolution statute. See also Griswold v. Connecticut, 381 U. S., at 481.
The parallel claims of the nurse, clergy, social worker, and corporation-appellants are another step removed and as to them, the Georgia statutes operate less directly. Not being licensed physicians, the nurses and the others are in no position to render medical advice. They would be reached by the abortion statutes only in their capacity as accessories or as counselor-conspirators. We conclude that we need not pass upon the status of these additional appellants in this suit, for the issues are sufficiently and adequately presented by Doe and the physician-appellants, and nothing is gained or lost by the presence or absence of the nurses, the clergymen, the social workers, and the corporations. See Roe v. Wade, ante, at 127.
IV
The appellants attack on several grounds those portions of the Georgia abortion statutes that remain after the District Court decision: undue restriction of a right to personal and marital privacy; vagueness; deprivation of substantive and procedural due process; improper restriction to Georgia residents; and denial of equal protection.
A. Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here and need not be repeated.
B. The appellants go on to argue, however, that the present Georgia statutes must be viewed historically, that is, from the fact that prior to the 1968 Act an abortion in Georgia was not criminal if performed to “preserve the life” of the mother. It is suggested that the present statute, as well, has this emphasis on the mother’s rights, not on those of the fetus. Appellants contend that it is thus clear that Georgia has given little, and certainly not first, consideration to the unborn child. Yet, it is the unborn child’s rights that Georgia asserts in justification of the statute. Appellants assert that this justification cannot be advanced at this late date.
Appellants then argue that the statutes do not adequately protect the woman’s right. This is so because it would be physically and emotionally damaging to Doe to bring a child into her poor, “fatherless” family, and because advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child. Thus, “a statute that requires a woman to carry an unwanted pregnancy to term infringes not only on a fundamental right of privacy but on the right to life itself.” Brief 27.
The appellants recognize that a century ago medical knowledge was not so advanced as it is today, that the techniques of antisepsis were not known, and that any abortion procedure was dangerous for the woman. To restrict the legality of the abortion to the situation where it was deemed necessary, in medical judgment, for the preservation of the woman’s life was only a natural conclusion in the exercise of the legislative judgment of that time. A State is not to be reproached, however, for a past judgmental determination made in the light of then-existing medical knowledge. It is perhaps unfair to argue, as the appellants do, that because the early focus was on the preservation of the woman’s life, the State’s present professed interest in the protection of embryonic and fetal life is to be downgraded. That argument denies the State, the right to readjust its views and emphases in the light of the advanced knowledge and techniques of the day.
C. Appellants argue that § 26-1202 (a) of the Georgia statutes, as it has been left by the District Court’s decision, is unconstitutionally vague. This argument centers on the proposition that, with the District Court’s having struck down the statutorily specified reasons, it still remains a crime for a physician to perform an abortion except when, as § 26-1202 (a) reads, it is “based upon his best clinical judgment that an abortion is necessary.” The appellants contend that the word “necessary” does not warn the physician of what conduct is proscribed; that the statute is wholly without objective standards and is subject to diverse interpretation; and that doctors will choose to err on the side of caution and will be arbitrary.
The net result of the District Court’s decision is that the abortion determination, so far as the physician is concerned, is made in the exercise of his professional, that is, his “best clinical,” judgment in the light of all the attendant circumstances. He is not now restricted to the three situations originally specified. Instead, he may range farther afield wherever his medical judgment, properly and professionally exercised, so dictates and directs him.
The vagueness argument is set at rest by the decision in United States v. Vuitch, 402 U. S. 62, 71-72 (1971), where the issue was raised with respect to a District of Columbia statute making abortions criminal “unless the same were done as necessary for the preservation of the mother’s life or health and under the direction of a competent licensed practitioner of medicine.” That statute has been construed to bear upon psychological as well as physical well-being. This being so, the Court concluded that the term “health” presented no problem of vagueness. “Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.” Id., at 72. This conclusion is equally applicable here. Whether, in the words of the Georgia statute, “an abortion is necessary” is a professional judgment that the Georgia physician will be called upon to make routinely.
We agree with the District Court,
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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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.
INTEGRITY STAFFING SOLUTIONS, INC., Petitioner
v.
Jesse BUSK et al.
No. 13-433.
Supreme Court of the United States
Argued Oct. 8, 2014.
Decided Dec. 9, 2014.
Paul D. Clement, Washington, DC, for Petitioner.
Curtis E. Gannon, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.
Mark R. Thierman, Reno, NV, for Respondents.
Neil M. Alexander, Rick D. Roskelley, Roger L. Grandgenett II, Cory Glen Walker, Littler Mendelson, Las Vegas, NV, Paul D. Clement, Counsel of Record, Jeffrey M. Harris, Barbara A. Smith, Bancroft PLLC, Washington, DC, for Petitioner.
Mark R. Thierman, Counsel of Record, Joshua D. Buck, Thierman Law Firm, P.C., Reno, NV, Eric Schnapper, University of Washington School of Law, Seattle, WA for Respondents.
Opinion
Justice THOMASdelivered the opinion of the Court.
The employer in this case required its employees, warehouse workers who retrieved inventory and packaged it for shipment, to undergo an antitheft security screening before leaving the warehouse each day. The question presented is whether the employees' time spent waiting to undergo and undergoing those security screenings is compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq.,as amended by the Portal-to-Portal Act of 1947, § 251 et seq.We hold that the time is not compensable. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit.
I
Petitioner Integrity Staffing Solutions, Inc., provides warehouse staffing to Amazon.com throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers.
Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors.
In 2010, Busk and Castro filed a putative class action against Integrity Staffing on behalf of similarly situated employees in the Nevada warehouses for alleged violations of the FLSA and Nevada labor laws. As relevant here, the employees alleged that they were entitled to compensation under the FLSA for the time spent waiting to undergo and actually undergoing the security screenings. They alleged that such time amounted to roughly 25 minutes each day and that it could have been reduced to a de minimisamount by adding more security screeners or by staggering the termination of shifts so that employees could flow through the checkpoint more quickly. They also alleged that the screenings were conducted "to prevent employee theft" and thus occurred "solely for the benefit of the employers and their customers." App. 19, 21.
The District Court dismissed the complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA. It explained that, because the screenings occurred after the regular work shift, the employees could state a claim for compensation only if the screenings were an integral and indispensable part of the principal activities they were employed to perform. The District Court held that these screenings were not integral and indispensable but instead fell into a noncompensable category of postliminary activities.
The United States Court of Appeals for the Ninth Circuit reversed in relevant part. 713 F.3d 525 (2013). The Court of Appeals asserted that postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principal activities if those postshift activities are necessary to the principal work performed and done for the benefit of the employer. Id.,at 530. Accepting as true the allegation that Integrity Staffing required the security screenings to prevent employee theft, the Court of Appeals concluded that the screenings were "necessary" to the employees' primary work as warehouse employees and done for Integrity Staffing's benefit. Id.,at 531.
We granted certiorari, 571 U.S. ----, 134 S.Ct. 1490, 188 L.Ed.2d 374 (2014), and now reverse.
II
A
Enacted in 1938, the FLSA established a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek. §§ 6(a)(1), 7(a)(3), 52 Stat. 1062-1063. An employer who violated these provisions could be held civilly liable for backpay, liquidated damages, and attorney's fees. § 16, id.,at 1069.
But the FLSA did not define "work" or "workweek," and this Court interpreted those terms broadly. It defined "work" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123,321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944). Similarly, it defined "the statutory workweek" to "includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680, 690-691, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Applying these expansive definitions, the Court found compensable the time spent traveling between mine portals and underground work areas, Tennessee Coal, supra, at 598, 64 S.Ct. 698, and the time spent walking from timeclocks to work benches, Anderson, supra,at 691-692, 66 S.Ct. 1187.
These decisions provoked a flood of litigation. In the six months following this Court's decision in Anderson,unions and employees filed more than 1,500 lawsuits under the FLSA. S.Rep. No. 37, 80th Cong., 1st Sess., pp. 2-3 (1947). These suits sought nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities. Ibid.
Congress responded swiftly. It found that the FLSA had "been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers." 29 U.S.C. § 251(a). Declaring the situation to be an "emergency," Congress found that, if such interpretations "were permitted to stand, ... the payment of such liabilities would bring about financial ruin of many employers" and "employees would receive windfall payments ... for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay." §§ 251(a)-(b).
Congress met this emergency with the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows:
"(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, ... on account of the failure of such employer ... to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act-
"(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
"(2) activities which are preliminary to or postliminary to said principal activity or activities,
"which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." § 4, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)).
At issue here is the exemption for "activities which are preliminary to or postliminary to said principal activity or activities."
B
This Court has consistently interpreted "the term 'principal activity or activities' [to] embrac[e] all activities which are an 'integral and indispensable part of the principal activities.' " IBP, Inc. v. Alvarez,546 U.S. 21, 29-30, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)(quoting Steiner v. Mitchell,350 U.S. 247, 252-253, 76 S.Ct. 330, 100 L.Ed. 267 (1956)). Our prior opinions used those words in their ordinary sense. The word "integral" means "[b]elonging to or making up an integral whole; constituent, component; spec[ifically] necessary to the completeness or integrity of the whole; forming an intrinsic portion or element, as distinguished from an adjunct or appendage." 5 Oxford English Dictionary 366 (1933) (OED); accord, Brief for United States as Amicus Curiae20 (Brief for United States); see also Webster's New International Dictionary 1290 (2d ed. 1954) (Webster's Second) ("[e]ssential to completeness; constituent, as a part"). And, when used to describe a duty, "indispensable" means a duty "[t]hat cannot be dispensed with, remitted, set aside, disregarded, or neglected." 5 OED 219; accord, Brief for United States 19; see also Webster's Second 1267 ("[n]ot capable of being dispensed with, set aside, neglected, or pronounced nonobligatory"). An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. As we describe below, this definition, as applied in these circumstances, is consistent with the Department of Labor's regulations.
Our precedents have identified several activities that satisfy this test. For example, we have held compensable the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were "toxic to human beings" and the employer conceded that "the clothes-changing and showering activities of the employees [were] indispensable to the performance of their productive work and integrally related thereto." Steiner, supra, at 249, 251, 76 S.Ct. 330. And we have held compensable the time meatpacker employees spent sharpening their knives because dull knives would "slow down production" on the assembly line, "affect the appearance of the meat as well as the quality of the hides," "cause waste," and lead to "accidents." Mitchell v. King Packing Co.,350 U.S. 260, 262, 76 S.Ct. 337, 100 L.Ed. 282 (1956). By contrast, we have held noncompensable the time poultry-plant employees spent waiting to don protective gear because such waiting was "two steps removed from the productive activity on the assembly line." IBP,supra,at 42, 126 S.Ct. 514.
The Department of Labor's regulations are consistent with this approach. See 29 CFR § 790.8(b) (2013)("The term 'principal activities' includes all activities which are an integral part of a principal activity"); § 790.8(c)("Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance"). As an illustration, those regulations explain that the time spent by an employee in a chemical plant changing clothes would be compensable if he "c[ould not] perform his principal activities without putting on certain clothes" but would not be compensable if "changing clothes [were] merely a convenience to the employee and not directly related to his principal activities." See § 790.8(c). As the regulations explain, "when performed under the conditions normally present," activities including "checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks" are " 'preliminary' " or " 'postliminary' " activities. § 790.7(g).
III
A
The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the "principal activity or activities which [the] employee is employed to perform." 29 U.S.C. § 254(a)(1). Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.
The security screenings also were not "integral and indispensable" to the employees' duties as warehouse workers. As explained above, an activity is not integral and indispensable to an employee's principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees' ability to complete their work.
The Solicitor General, adopting the position of the Department of Labor, agrees that these screenings were noncompensable postliminary activities. See Brief for United States 10. That view is fully consistent with an Opinion Letter the Department issued in 1951. The letter found noncompensable a preshift security search of employees in a rocket-powder plant " 'for matches, spark producing devices such as cigarette lighters, and other items which have a direct bearing on the safety of the employees,' " as well as a postshift security search of the employees done " 'for the purpose of preventing theft.' " Opinion Letter from Dept. of Labor, Wage and Hour Div., to Dept. of Army, Office of Chief of Ordnance (Apr. 18, 1951), pp. 1-2 (available in Clerk of Court's case file). The Department drew no distinction between the searches conducted for the safety of the employees and those conducted for the purpose of preventing theft-neither were compensable under the Portal-to-Portal Act.
B
The Court of Appeals erred by focusing on whether an employer requireda particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform. See, e.g., IBP, 546 U.S., at 42, 126 S.Ct. 514;Mitchell,supra,at 262, 76 S.Ct. 337; Steiner,350 U.S., at 249-251, 76 S.Ct. 330; see also 29 CFR § 790.8(a)(explaining that the term "principal activities" was "considered sufficiently broad to embrace within its terms such activities as are indispensable to the performance of productive work" (internal quotation marks omitted; emphasis added)); § 790.8(c)("Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance" (emphasis added)).
If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into "principal activities" the very activities that the Portal-to-Portal Act was designed to address. The employer in Anderson,for instance, required its employees to walk "from a timeclock near the factory gate to a workstation" so that they could "begin their work," "but it is indisputable that the Portal-to-Portal Act evinces Congress' intent to repudiate Anderson's holding that such walking time was compensable under the FLSA." IBP,supra,at 41, 126 S.Ct. 514. A test that turns on whether the activity is for the benefit of the employer is similarly overbroad.
Finally, we reject the employees' argument that time spent waiting to undergo the security screenings is compensable under the FLSA because Integrity Staffing could have reduced that time to a de minimisamount. The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform. These arguments are properly presented to the employer at the bargaining table, see 29 U.S.C. § 254(b)(1), not to a court in an FLSA claim.
* * *
We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform-and thus compensable under the FLSA-if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. Because the employees' time spent waiting to undergo and undergoing Integrity Staffing's security screenings does not meet these criteria, we reverse the judgment of the Court of Appeals.
It is so ordered.
Justice SOTOMAYOR, with whom Justice KAGANjoins, concurring.
I concur in the Court's opinion, and write separately only to explain my understanding of the standards the Court applies.
The Court reaches two critical conclusions. First, the Court confirms that compensable " 'principal' " activities " 'includ[e] ... those closely related activities which are indispensable to [a principal activity's] performance,' " ante,at 518 (quoting 29 CFR § 790.8(c)(2013)), and holds that the required security screenings here were not "integral and indispensable" to another principal activity the employees were employed to perform, ante,at 518. I agree. As both Department of Labor regulations and our precedent make clear, an activity is "indispensable" to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively. Thus, although a battery plant worker might, for example, perform his principal activities without donning proper protective gear, he could not do so safely, see Steiner v. Mitchell,350 U.S. 247, 250-253, 76 S.Ct. 330, 100 L.Ed. 267 (1956); likewise, a butcher might be able to cut meat without having sharpened his knives, but he could not do so effectively, see Mitchell v. King Packing Co.,350 U.S. 260, 262-263, 76 S.Ct. 337, 100 L.Ed. 282 (1956); accord, 29 CFR § 790.8(c). Here, by contrast, the security screenings were not "integral and indispensable" to the employees' other principal activities in this sense. The screenings may, as the Ninth Circuit observed below, have been in some way related to the work that the employees performed in the warehouse, see 713 F.3d 525, 531 (2013), but the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired, see ante,at 518.
Second, the Court holds also that the screenings were not themselves " 'principal ... activities' " the employees were " 'employed to perform.' " Ibid.(quoting 29 U.S.C. § 254(a)(1)). On this point, I understand the Court's analysis to turn on its conclusion that undergoing security screenings was not itself work of consequence that the employees performed for their employer. See ante,at 518. Again, I agree. As the statute's use of the words "preliminary" and "postliminary" suggests, § 254(a)(2), and as our precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end of the workday. See IBP, Inc. v. Alvarez,546 U.S. 21, 34-37, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). It distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual "work of consequence performed for an employer," on the other hand. 29 CFR § 790.8(a); see also ibid.(clarifying that a principal activity need not predominate over other activities, and that an employee could be employed to perform multiple principal activities). The security screenings at issue here fall on the "preliminary ... or postliminary" side of this line. 29 U.S.C. § 254(a)(2). The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so-activities that Congress clearly deemed to be preliminary or postliminary. See S.Rep. No. 48, 80th Cong., 1st Sess., 47 (1947); 29 CFR § 790.7(g). Indeed, as the Court observes, the Department of Labor reached the very same conclusion regarding similar security screenings shortly after the Portal-to-Portal Act was adopted, see ante,at 518 - 519, and we owe deference to that determination, see Christensen v. Harris County,529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000).
Because I understand the Court's opinion to be consistent with the foregoing, I join it.
Question: What is the court whose decision the Supreme Court reviewed?
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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sc_certreason
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
TANIGUCHI v. KAN PACIFIC SAIPAN, LTD., dba MARIANAS RESORT AND SPA
No. 10-1472.
Argued February 21, 2012
Decided May 21, 2012
Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Kagan, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined, post, p. 575.
Michael S. Fried argued the cause for petitioner. With him on the briefs were Donald. B. Ayer, Christopher J. Smith, and Douglas F. Cushnie.
Dan Himmelfarb argued the cause for respondent. With him on the brief were Michael B. Kimberly and Thomas L. Roberts.
Mark T. Stancil, David T. Goldberg, Daniel R. Ortiz, James E. Ryan, and John P. Elwood filed a brief for the National Association of Judiciary Interpreters and Translators as amicus curiae urging reversal.
Deanne E. Maynard, Brian R. Matsui, and Marc A. Hearron filed a brief for the Chicago Area Translators and Interpreters Association et al. as amici curiae urging affirmance.
M. Scott Barnard, Scott T. Williams, and Patrick G. O’Brien filed a brief for Interpreting and Translation Professors as amici curiae.
Justice Alito
delivered the opinion of the Court.
The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U. S. C. § 1920. The Court Interpreters Act amended that statute to include “compensation of interpreters.” §1920(6); see also § 7, 92 Stat. 2044. The question presented in this case is whether “compensation of interpreters” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation.
I — <
This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Islands. Petitioner was injured when his leg broke through, a wooden deck during a tour of respondent’s resort property. Initially, petitioner said that he needed no medical attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Mariana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise reasonable care.
In preparing its defense, respondent paid to have various documents translated from Japanese to English. After the District Court granted summary judgment in respondent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under § 1920(6). Explaining that interpreter services “cannot be separated into ‘translation’ and ‘interpretation,’” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’” ibid. Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court concluded that the translation services were properly taxed as costs.
The United States Court of Appeals for the Ninth Circuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected petitioner’s argument that the cost of document translation services is not recoverable as “compensation of interpreters.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech versus written documents.” 633 F. 3d 1218, 1221 (2011). “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” Ibid. The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as. interpretation of the items is necessary to the litigation.” Id., at 1221-1222.
Because there is a split among the Courts of Appeals on this issue, we granted certiorari. 564 U. S. 1066 (2011).
HH f — <
A
Although the taxation of costs was not allowed at common law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247-248 (1975). In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law:
“That there be allowed and taxed in the supreme,.circuit and district courts of the United States, in favour of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attornies and counsellors’ fees ... as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, ch. 20, §4, 1 Stat. 333.
Although twice reenacted, this provision expired in 1799. Alyeska Pipeline, supra, at 248, n. 19; Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U. S. 437, 439 (1987). Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Pipeline, 421 U. S., at 250.
Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. Id., at 251. The impetus for a uniform federal rule was largely the consequence of two developments. First, a “great diversity in practice among the courts” had emerged. Ibid. Second, “losing litigants were being unfairly saddled with exorbitant fees for the victor’s attorney.” Ibid. Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” Id., at 251-252; The substance of this Act was transmitted through the Revised Statutes of 1874 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U. S. C. § 1920. 421 U. S., at 255.
Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney’s fees — should be allowed to the prevailing party.” Rule 54(d)(1). We have held that “§ 1920 defines the term ‘costs’ as used in Rule 54(d).” Crawford Fitting, 482 U. S., at 441. In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in § 1920.” Ibid.
As originally configured, § 1920 contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and witnesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[djocket fees under section 1923 of this title.” 62 Stat. 955. In 1978, Congress enacted the Court Interpreters Act, which amended § 1920 to add a sixth category: “[ejompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services- under section 1828 of this title.” 28 U. S. C. § 1920(6); see also § 7, 92 Stat. 2044. We are concerned here with this sixth category, specifically the item of taxable costs identified as “compensation of interpreters.”
B
To determine whether the item “compensation of interpreters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995). The question here is: What is the ordinary meaning of “interpreter”?
Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language 'into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner-Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign language.” Random House Dictionary of the English Language 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that definition into two senses: “a. [a] translator of books or writings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking different languages; spec, one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford English Dictionary 416 (1933); see also Concise Oxford Dictionary of Current English 566 (6th ed. 1976) (“[o]ne who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages:... a translator (obs.)”).
Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral, translation. The; then-current edition of Black’s Law Dictionary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner... to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“[o]ne who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (1878) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “interpreter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign language”).
Against these authorities, respondent relies almost exclusively on Webster’s Third New International Dictionary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues.” Webster’s Third 1182 (1976). The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suffices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explaining that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same conclusion. 633 F. 3d, at 1221. We disagree.
That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘demand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denoting the most common usage suggests that other usages, although acceptable, might not be common-or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See supra, at 566-568. Although the Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See supra, at 566-567. Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many dictionaries and is deemed obsolete in others is hardly a common or ordinary meaning.
Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “interpreter” does not include those who translate writings. Instead, we find that an interpreter is normally understood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English-language ‘interpreter’ of these works.” Extra Equipamentos E Exportaȩão Ltda. v. Case Corp., 541 F. 3d 719, 727 (2008).
To be sure, the word “interpreter” can encompass persons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in § 1920, however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear.
If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress enacted § 1920(6) as part of the Court Interpreters Act. The main provision of that Act is §2(a), codified in 28 U. S. C. §§ 1827 and 1828. See 92 Stat. 2040-2042. Particularly relevant here is § 1827. As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.” § 1827(a). Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primarily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness' comprehension of questions and the presentation of such testimony.” § 1827(d)(1). As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters . . . shall be in the consecutive mode except that the presiding judicial officer . . . may authorize a simultaneous or summary interpretation.” § 1827(k) (1976 ed., Supp. II); see also 92 Stat. 2042. In its current form, subsection (k) provides that interpretation “shall be in the simultaneous mode for any party ., . and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings. Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory construction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Gustafson v. Alloyd Co., 513 U. S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 342 (1994)).
The references to technical terminology in the Court Interpreters Act further suggest that Congress used “interpreter” in a technical sense, and it is therefore significant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversations,” and “translators,” who “are, used for written communications.” Zazueta, supra n. 4, at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research i (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present-day jargon of international organisations, the words translate, translations, translator are used when the immediate result of the work is a written text; and the words interpret, interpreter, interpretation when it is a speech delivered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit § 1920(6) to the costs of oral, instead of written, translation.
In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that § 1920(6) does not apply to translators of written materials.
C
No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Appeals reasoned that a broader meaning is “more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” 633 F. 3d, at 1221. But we have never held that Rule 54(d) creates a presumption of statutory construction in favor of the broadest possible reading of the costs enumerated in § 1920. To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford, Fitting, 482 U. S., at 442. “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in §1920.” Ibid. Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.”
Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2666, pp. 202-203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is eyident from § 1920, which lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. Indeed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hairline Creations, Inc. v. Refalas, 664 F. 2d 652, 656 (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. It comes as little surprise, therefore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller §2666, at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in § 1920.
As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to.require the losing party to cover translation costs for spoken words but not for written words. Brief for Respondent 20. Respondent also observes that some translation tasks are not entirely oral or entirely written. Id., at 20-24. One task, called “ ‘sight translation,”’ involves the oral translation of a document. Id., at 21. Another task involves the written translation of speech. Ibid. And a third task, called “ ‘document comparison,’ ” involves comparing documents in the source and target language to verify that the two are identical. Id., at 21-22. Respondent argues that a narrow definition cannot account for these variations and that a bright-line definition of “interpreter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts.
Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary meaning of “interpreter” in §1920(6). First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery documents, as opposed to the more limited costs of oral testimony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 718 (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence — like, for instance, a forensic accountant — than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court.
Second, respondent has not shown that any of the hybrid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontaxable costs in such cases will vex the trial courts. It certainly has not shown that any such problems will be more troublesome than the task of sifting through translated discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks performed by an “interpreter” as that term is ordinarily understood.
* * *
Because the ordinary meaning of “interpreter” is someone who translates orally from one language to another, we hold that the category “compensation of interpreters” in § 1920(6) does not include costs for document translation. We therefore vacate the judgment of the United States Court of Ap- . peals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Compare BDT Products, Inc. v. Lexmark Int'l, Inc., 405 F. 3d 415, 419 (CA6 2005) (holding that document translation costs are taxable under § 1920(6) because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equipamentos E Exportando Ltda. v. Case Corp., 541 F. 3d 719, 727-728 (CA7 2008) (holding that document translation costs are not taxable under § 1920(6) because an interpreter is “normally understood [as] a person who translates living speech from one language to another”).
A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“[o]ne who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barn-hart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“[o]ne who interprets, esp. one employed to translate orally to persons speaking a foreign language”).
This provision remains substantially the same as it appeared when first enacted. See 28 U. S. C. § 1827(d)(1) (1976 ed., Supp. II); see also 92 Stat. 2040.
The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95-1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” Ibid. And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” Ibid.; see generally Zazueta, Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477-478 (1975).
The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after § 1920(6)’s enactment.” Post, at 579 (opinion of Ginsburg, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal-court practice before the Act under other provisions of § 1920 tells us little, if anything, about what Congress intended when it added paragraph (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning.
Some provisions within the United States Code use both “interpreter” and “translator” together, thus implying that Congress understands the terms to have the distinct meanings described above. See, e. g., 8 U. S. C. § 1555(b) (providing that appropriations for the Immigration and Naturalization Service “shall be available for payment of . . . interpreters and translators who are not citizens of the United States”); 28 U. S. C. § 530C(b)(1)(1) (providing that Department of Justice funds may be used for “[pjayment of interpreters and translators who are not citizens of the United States”).
Our conclusion is buttressed by respondent’s concession at oral argument that there is no provision in the United States Code where it is clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of Oral Arg. 38.
The dissent contends that document translation, no less than oral translation, is essential “to ecpiip the parties to present their case clearly and the court to decide the merits intelligently. ” Post, at 579. But a document translator is no more important than an expert or consultant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_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.
AMARILLO BRANCH OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Plaintiffs-Appellants, v. AMARILLO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
No. 71-1353.
United States Court of Appeals, Fifth Circuit.
June 9, 1971.
Walter P. Wolfram, Amarillo, Tex., for plaintiffs-appellants.
R. A. Wilson, Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Tex., for defendant-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
BY THE COURT:
The finding of the District Court that the rebuilding of Amarillo High School at the proposed location in Southwest Amarillo, rather than at the original downtown location (where the school was destroyed by fire), does not serve to perpetuate or re-establish the dual system is clearly supported by the record. Swann v. Charlotte-Mecklenburg Board of Education, April 20, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554.
Affirmed.
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_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.
IMPERIAL CASUALTY & INDEMNITY COMPANY, a Corporation, Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, Appellee.
No. 19121.
United States Court of Appeals Eighth Circuit.
Oct. 30, 1968.
Larry E. Welch, Omaha, Neb., for appellant; Joseph H. McGrorarty, Omaha, Neb., on the brief.
Harold W. Kauffman, of Gross, Welch, Vinardi, Kauffman, Schatz & Day, Omaha, Neb., for appellee; Harry L. Welch, Omaha, Neb., on the brief.
Before VAN OOSTERHOUT, Chief Judge and GIBSON, and BRIGHT, Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
This is a declaratory judgment action to determine rights and liabilities under a liability policy issued by the defendant, Imperial Casualty & Indemnity Company, to Bluffs Motor Xpress, Inc., and presents a question of coverage where the policy issued was not effective to cover the overall trucking operations of the assured. Diversity of citizenship and amount in controversy establishes jurisdiction in the United States District Court for the District of Nebraska.
Chief Judge Richard E. Robinson of the United States District Court for Nebraska, after a trial to the court, entered judgment for the plaintiff, Carolina Casualty Insurance Company, holding that Imperial was responsible for the acts of its agents in issuing a defective policy and the negligence of the agents was sufficient to estop Imperial from asserting an exclusionary clause in the insurance contract. After entry of judgment and the overruling of post-trial motions, defendant Imperial filed this appeal. We affirm.
A review of the factual situation under which the policy in question was issued is necessary for a consideration of the legal issues presented.
Bluffs, a trucking company owned and operated by Clarence Werner, had its headquarters in Council Bluffs, Iowa. On April 8, 1961, Imperial issued its policy to Bluffs covering all operating equipment owned by Bluffs which at that time consisted of three tractors and three trailers. The insurance coverage was solicited by Herluf Christensen and written by Agent Darrah Insurance Company. Previously Christensen had solicited liability insurance from John Werner, a brother of Clarence, on a 1961 GMC tractor and a 1961 Wilson trailer, which unit John operated individually out of Petersburg, Nebraska. He occasionally used the unit on behalf of Bluffs. Christensen and Darrah placed this insurance in Carolina effective March 20, 1961. In May 1961 John Werner decided to quit the trucking business and go back to farming. John turned over his 1961 GMC tractor to Bluffs under an oral lease which obligated Bluffs to make the monthly payment on the tractor mortgage, maintain the tractor in A-l condition and pay the insurance premiums on the tractor. After the tractor was paid for it was to be returned to John. The 1961 Wilson trailer owned by John was sold outright to Bluffs.
The Carolina policy and the Imperial policy both contained an exclusionary clause in substantially the following language :
“This policy does not apply: * * * “(c) under coverages A and B while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company; or while any trailer covered by this policy is used with any automobile owned or hired by the insured and not covered by like insurance in the company; * *."
Clarence Werner on behalf of Bluffs notified Christensen that it had taken over the equipment from John Werner. Subsequently Bluffs sold the Wilson trailer and replaced it with a Chamberlain trailer. Upon making the replacement Christensen was again notified, and he, through Darrah, added the Chamberlain trailer to the equipment schedule of the Imperial policy. Darrah and Christensen had inspected Bluffs’ equipment and operation at the time the Imperial policy was written to ascertain how Bluffs operated their trucks, miles and radius traveled, the value of the loads and in what states permits would be needed. A company like Bluffs, operating and handling perishables, including livestock, could not operate without interchanging tractors and trailers. Darrah and Christensen were aware of this and knew also that the permits in Iowa were on the trailers. They made the filing on the trailers and at that time must have known in filing four trailers, and Imperial covering only three tractors, that Bluffs was using the John Werner tractor to pull one of the trailers insured by Imperial. Darrah as general agent for both insurance companies was an expert in the field of trucking insurance. He is charged with knowledge of the requirement that the same insurance company would have to carry the coverage on both the tractor and trailer to provide effective liability insurance. Thus, when the change was made in May of Bluffs acquiring the John Werner tractor and trailer and the subsequent replacement of that trailer with the Chamberlain trailer, all of the insurance on the four tractors and trailers should have been placed in one company. By scheduling the Chamberlain trailer on the Imperial policy the insurance agents made the Carolina policy under its terms useless as there was no trailer insured by Carolina to which the 1961 GMC tractor could attach, and in addition rendered ineffective the Imperial policy when any of the trailers insured under that policy would be used in connection with the 1961 GMC tractor.
On January 9, 1962, an employee of Bluffs, while driving the 1961 GMC tractor insured by Carolina and pulling the Chamberlain trailer insured by Imperial, negligently collided with an automobile driven by Raymond O. Dressier in Omaha, Nebraska. Dressier was killed and considerable damage was done to the South Omaha bridge. Suit was filed in Iowa by the executrix of Dressier and was settled for $23,375 by Carolina. Imperial refused to participate in the defense of the action asserting a lack of coverage by reason of its exclusionary clause. Carolina felt that since the defective coverage was the fault or negligence of the insurance agents for both companies it would be estopped from asserting the exclusionary clause and that, of course, Imperial likewise should be es-topped. After effecting the settlement and paying out an additional $394.35 for attorney’s fees and expenses on the Dressier case, Carolina filed this present action seeking to impose liability on Imperial for two-thirds of the cost and expense of settling the Dressier death claim, the division of liability being in accordance with applicable clauses in each insurance policy and based upon the amount of primary coverage afforded by both policies. The division is not in issue, nor is the amount expended in settlement and expense. Imperial concedes the expenditures to be reasonable but maintains its policy issued to protect Bluffs, the assured, afforded no coverage because of the exclusionary clause. In addition Carolina’s complaint also notes that there is a claim of $5200 being asserted against Bluffs by the State of Nebraska for damage to the South Omaha bridge. ,
As Chief Judge Robinson viewed it, “the primary issue for determination here is whether the conduct of Herluf Christensen and the Darrah Insurance Agency precludes the defendant from denying liability coverage under the exclusion.” He held on the basis of Hully v. Aluminum Company of America, 143 F. Supp. 508 (S.D.Iowa 1956), aff’d on other issues sub nom Columbia Casualty Company v. Eichleay Corporation 245 F.2d 1 (8 Cir. 1957), that Imperta was estopped to take advantage of its agents’ mistake or negligence in failing to properly handle the coverage that was to be afforded the assured. He reasoned:
“In the instant case, the agents knew that a GMC Tractor had been used with a Wilson Trailer and that both had been insured with Carolina Casualty. They knew that both had come under the control of Bluffs Motor Express whose equipment was insured with Imperial Casualty. They knew that Bluffs was using the GMC Tractor and continued to accept the premiums thereon from Bluffs. ^ They were entrusted with the responsibility of choosing a company in which to place all of the equipment involved in-eluding the Chamberlain Trailer. Yet they chose to write the coverage on the new Chamberlain Trailer with Imperial Casualty when they knew or should have known that by placing the trailer with Imperial they had effectively rendered the Carolina policy void and the coverage on the trailer defective. * * * By delivering the Imperial policy under these conditions they represented that it was effective for its intended purpose. Hully v. Aluminum Company of America [supra]. The insured relied on the representation in good faith and was prejudiced thereby. Imperial Casualty is estopped to take advantage of the ex-elusion to deny its liability.”
Imperial, on appeal, contends (1) there -g no evidence to support the finding of an estoppel and (2) the doctrine of estoppel is not applicable to prevent an insuranee company from relying on an exclusionary clause in its policy.
i. The factual finding of the court that “Christensen knew or should have known that by issuing insurance on the new Chamberlain trailer with Imperial that the insurance covering the GMC factor would not be effective when used with any of the Bluffs' trailers; in effect rendering it useless” is amply supported by the record. On review a finding of fact of the District Court may not be disturbed under Rule 52(a), Fed.R.Civ.P., unless the finding is clearly erroneous. All reasonable inferenees drawn from undisputed facts and from the resolution of disputed fact issues are for the trial court, including matters of credibility of the witnesses and the weight to be accorded testimony, And on appeal the evidence, including inferences reasonably drawn therefrom, is viewed in the light most favorable to the prevailing party. Baker v. United States, 343 F.2d 222, 224 (8 Cir. 1965). Applying the “clearly erroneous standard” jn this case leaves the factual findings of the District Court intact,
Under Iowa law, which is applicable as Iowa is the issuing state of the policies, any person soliciting insuranee or procuring an application therefor shall-be held to be the soliciting agent of the insurance company. This makes both Christensen and Darrah agents for both insurance companies. They knew that the GMC tractor had been used with the Wilson trailer and that both pieces of equipment were insured by them with Carolina. They knew that both had come under the control of Bluffs, whose equipment they had insured with Imperial. They continued to accept the monthly premiums on both policies from Bluffs and yet they negligently placed the coverage on the new Chamberlain trailer, which was a replacement for the Wilson trailer, with Imperial. In doing so they must have known or at least should have known that by placing the trailer with Imperial they had effectively rendered the Carolina policy void and the coverage on the trailer defective. They knew the tractors and trailers operated by Bluffs would be used interchangeably. They were entrusted with the responsibility of securing a policy that would adequately protect the assured in its operations and by delivering the Imperial policy, which was their own selection, they represented that it was effective for its intended purpose. The knowledge of these agents is imputed to the insurance companies, and both Carolina and Imperial are estopped from asserting the exclusionary clause that would deny coverage under these circumstances.
2. Imperial maintains the District Court misconceived or misconstrued the Iowa law and that coverage under an insurance contract cannot be extended by estoppel. It cites Pierce v. Homesteaders Ins. Ass’n, 223 Iowa 211, 272 N.W. 543 (1937); Richardson v. Iowa State Traveling Men’s Ass’n, 228 Iowa 319, 291 N.W. 408 (1940); Randolph v. Fireman’s Fund Insurance Co., 255 Iowa 943, 124 N.W.2d 528, 8 A.L.R.3d 907 (1963); Mallinger v. State Farm Mutual, 253 Iowa 222, 111 N.W.2d 647 (1961); Manufacturers & Merchants Indem. Co. v. Claman, 96 F.Supp. 385 (S.D.Iowa 1951).
Pierce held that “estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all.” (272 N.W. p. 546) — in a factual situation where a membership certificate in a fraternal benefit association only agreed to cover the insured up to age sixty; and further said it was incumbent upon the> beneficiary to prove that the death of the assured occurred before the contract terminated. Richardson gave effect to a policy exclusion of death caused by aerial conveyance. Randolph merely found that the payment of a small claim under a farmers comprehensive personal liability policy did not constitute a waiver or estoppel extending the policy coverage to unlisted farm employees. Mallinger gave effect to an exclusionary clause excluding coverage on accidents occurring while assured operated a farm tractor owned by him or a relative on a public highway, finding no repugnancy or fraud in the policy. Manufacturers & Merchants Indemnity Company follows the above line of cases in stating that while there may be a waiver in matters of forfeiture the courts are unwilling to utilize estoppel to create a new contract.
We are of the opinion the above cases are not applicable to the present factual situation as in none of these cases did the insurance company or its agents represent or undertake to supply a policy that would cover the assured’s business operation and accept premiums sufficient for such coverage. Furthermore, the facts do not present a sound basis for a finding of estoppel in any of the above cases.
Imperial also contends that in Iowa knowledge of the agent that the insured might violate terms of an insurance contract in the future is not knowledge to the company, citing House v. Security Fire Insurance Company, 145 Iowa 462, 121 N.W. 509 (1909).
This argument ignores the distinction between knowledge of possible future violations from knowledge of existing or past conditions. That same case cited with approval, Wensel v. Property Mutual Insurance Ass’n of Waterloo, 129 Iowa 295, 105 N.W. 522 (1906), stating at 512 of 121 N.W., at 523 of 105 N.W.:
“ ‘[I]f the agent of an insurance company has knowledge of past conditions or existing facts avoiding a policy which is secured by him, by reason of such facts being within certain prohibitions which presently avoid the policy, the company * * * with this knowledge on the part of its agent cannot insist upon these facts for the purpose of avoiding liability.’ ”
In addition we think that knowledge of an insurance agent of the assured’s requirements is imputed to the insurance company and that the District Court properly conceived Hully v. Aluminum Company of America, 143 F.Supp. 508 (S.D.Iowa 1956), aff’d on other issues sub nom Columbia Casualty Company v. Eichleay Corporation, 245 F.2d 1 (8 Cir. 1957), as stating the Iowa law. Judge Davies in his district court opinion in Hully reviewed the Iowa law on estoppel and concluded at 513 of 143 F.Supp. 508:
“An insurance company is estopped to take advantage of a condition which its agent by mistake or negligence had failed to handle properly in the policy. * * * The mistake or negligence of the agent within the scope of apparent authority is the responsibility of the insurance company. * * * Where the company or its agent delivers to the insured a policy which is known, or should be known, to be defective, such conduct is a representation that the policy is valid and effective for the purpose intended. * * * And the insured, if he is ignorant of the defect and has no special competence or experience in insurance matters, is privileged in Iowa to rely upon that representation without reading or being charged with knowledge of the contents of the policy. * * * The insured, by trusting in the skill and competence of the agent and paying the premiums for expected protection, would be prejudiced if the insurance company were allowed to assert the condition avoiding liability. * * * ” (All citations omitted).
Imperial further contends that fraud either in intent or result is an essential element of estoppel. While there was no fraudulent intent in this case, a fraudulent result did occur if Imperial is allowed to assert the policy exclusion, as Imperial’s own agent accepted premiums for a total coverage of Bluffs’ operations and purported to afford Bluffs adequate coverage for its operations within the liability amounts of the policy. We, however, need not pursue this point as we think the negligence of an agent is a sufficient basis for estoppel. Sanborn v. Maryland Casualty Company, 255 Iowa 1319, 125 N.W.2d 758 (1964); 31 C.J.S. Estoppel § 59, p. 367. We are in agreement with Carolina’s assertion that the coverage question only arose in this case because of the negligent actions of Christensen and Darrah, the agents and representatives of both Carolina and Imperial ; and that the negligence of these agents in handling the placement of coverage should be borne by the companies involved and not by the insured who paid for coverage of all tractors and all trailers utilized in its operation.
Our decision is not only in accord with the applicable Iowa law as interpreted by the District Judge but finds support in Henry v. Southern Fire and Casualty Company, 46 Tenn.App. 335, 330 S.W.2d 18 (1958) applying the doctrine of estoppel to the same type of exclusionary clause; and in Poole v. Travelers Insurance Company, 130 Fla. 806, 179 So. 138 (1938). Imperial’s position is supported by Hartford Accident and Indemnity Co. v. Lockard, 239 Miss. 644, 124 So.2d 849 (1960) where a divided court refused to apply estoppel to an exclusionary clause. Although Hartford is distinguishable in some respects, we think that it states a minority viewpoint, lacks equity and does not state a preferred view of the law on this issue.
Judgment affirmed.
. The parties will be referred to by an abbreviated designation or in their status as litigants below.
. The applicable provisions of the Iowa Code 1966 read as follows:
“515.123 Any person who shall hereafter solicit insurance or procure application therefor shall be held to be the soliciting agent of the insurance company or association issuing a policy on such application or on a renewal
thereof, anything in the application, policy, or contract, to the contrary notwithstanding.
“515.124 The term ‘agent’ used in the foregoing sections of this chapter shall include any other person who shall in any manner directly or indirectly transact the insurance business for any insurance company complying with the laws of this state.”
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_usc1
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15
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
TAYLOR DRUG STORES, INC., Plaintiff-Appellant, v. ASSOCIATED DRY GOODS CORPORATION et al., Defendants-Appellees.
No. 76-1486.
United States Court of Appeals, Sixth Circuit.
Argued June 23, 1977.
Decided and Filed Aug. 12, 1977.
Charles G. Middleton, III, Albert F. Reut-linger, Middleton, Reutlinger & Baird, Louisville, Ky., for plaintiff-appellant.
John E. Tarrant, Bert T. Combs, Edwin S. Hopson, Louisville, Ky., for Associated Dry Goods.
Stuart A. Handmaker, K. S. Handmaker, Louisville, Ky., for Ben Snyder’s Inc.
Kenneth L. Anderson, Louisville, Ky., for Sears & Roebuck Co.
Before EDWARDS and PECK, Circuit Judges, and WEINMAN, Senior District Judge.
Honorable Carl A. Weinman, Senior United States District Judge for the Southern District of Ohio, sitting by designation.
PER CURIAM.
Appellant Taylor Drug Stores, Inc., appeals from summary judgment entered for all defendants in a civil action which alleged violation of the Sherman and Clayton Antitrust Acts, 15 U.S.C. § 1 (1970), as amended (Supp. V, 1975); id. § 15 (1970). In 1969 at the beginning of the events which led to this litigation, appellant was a general drug company which operated approximately 20 drug stores in Jefferson County, Kentucky, and followed the practice of stayinjg open on Sundays. Defendants-appellees, Retail Merchants Association, Associated Dry Goods Corporation, Ben Snyder, Inc., and Sears, Roebuck Company, decided to file a suit in the Jefferson County Circuit Court to keep plaintiff and others from continuing to do business on Sunday as to those portions of its sales which were non-necessities of life to which the Kentucky Sunday Closing Law applied. Ky.Rev.Stat. § 436.160.
After trial on the complaint filed by our current defendants, the Jefferson County Circuit Court issued first a temporary injunction (which was affirmed on appeal to the Kentucky Court of Appeals) and then a permanent injunction. The appeal of the permanent injunction was voluntarily dismissed by appellants, including Taylor Drug Stores, and the injunction was dissolved by agreement, when the Kentucky General Assembly amended the Sunday closing law mooting the issue. Act of February 25, 1972, ch. 18, [1972] Ky. Acts 44, amending Ky.Rev.Stat. § 436.160 (codified at Ky.Rev. Stat. §§ 436.160, .165).
Claiming damages represented by loss of profits when its business was diminished for three years while it was enjoined from Sunday operations, plaintiff Taylor Drug Stores filed the instant antitrust suit alleging that defendants had conspired to bring the Jefferson County injunction suit with the real motive of restraining Taylor Drug Stores, Inc.’s competition. The suit alleged that at the time of the Jefferson County Circuit Court litigation brought by defendants seeking to enforce the Kentucky Sunday Closing Law against plaintiff, some of the present defendants were themselves operating across the river in Indiana, in violation of the Indiana Sunday Closing Law.
On the filing of this antitrust complaint, and after the conducting of extensive discovery, motions for summary judgment were filed by defendants-appellees. In a careful opinion, the District Court granted defendants-appellees’ motion for summary judgment as to Count II of the complaint. While relying upon the general exception to the antitrust laws first defined in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 669-72, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), he also recognized and discussed the holding of the Supreme Court in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508,92 S.Ct. 609, 30 L.Ed.2d 642 (1972). In the latter case the Supreme Court held that concerted action by petitioners to institute both state and federal litigation to resist and defeat applications by respondents to acquire trucking operating rights could represent antitrust violations regardless of the general right of all citizens to have access to the courts. In California Motor Transport the Court said:
A combination of entrepreneurs to harass and deter their competitors from having “free and unlimited access” to the agencies and courts, to defeat that right by massive, concerted, and purposeful activities of the group are ways of building up one empire and destroying another.
Id. at 515, 92 S.Ct. at 614.
The District Court noted, however, that in our instant case the actions of the present defendants-appellees in the 1969 litigation represented “one lawsuit in which they were successful at all levels [where they sought] the enforcement of a statute which had been previously declared Constitutional by the highest court of Kentucky.”
We agree with plaintiff-appellant that summary judgment is rarely an appropriate response to antitrust litigation, since such litigation so frequently turns upon disputed issues of fact. In our instant case, however, we find the following colloquy between one of the counsel for defendantsappellees and Mr. William Hayward Harrison, the President of plaintiff Taylor Drug Stores, Inc., plaintiff-appellant in this cause:
481. Mr. Harrison, was there — do you have any facts or knowledge of any steps taken by any of the defendants in this case to keep you from buying merchandise or keep you from getting, when you wanted it, any merchandise that you had a purchase order outstanding with every one of your suppliers?
A. No.
482. Do you know of any facts to support any claim that any attempt was made to control your sources of supply by the defendants in this case, or any member of the—
A. (Interrupting) I don’t think we have — no such — no such thing ever happened. I don’t think that allegation was ever made or suggested.
483. It is alleged in the Amended Complaint that has been filed on behalf of your company, among other things, that one of the bad things our defendants are accused of doing is conspiring to restrain you by — your company and others — including co-conspirators — from competing with the defendants and requiring them to adhere to the trade practices which the defendants desire to impose on the marketing areas in which they operate.
Now, other than seeking to enforce the Sunday closing laws, do you have any knowledge of any facts to support any claim that any of the defendants got together, or individually, and attempted to impose upon your company any trade practices that they wanted your company to follow?
A. Other than Sunday closing; no.
Further, plaintiff-appellant has had over a year of discovery and at oral argument of this case, counsel for plaintiff-appellant was unable to point out to this court a single issue which we were able to recognize as an issue of fact (as opposed to an issue of law) which would be available for trial if we were to vacate the summary judgment and remand for trial.
We find ourselves in agreement with the District Court that defendants-appellees’ Jefferson County Circuit Court suit commenced in 1969 against plaintiff-appellant in this cause was not a sham. They had a constitutional right of access to the state courts to enforce a state law which had previously been upheld by the highest court of the state. The record clearly discloses that they prevailed in that litigation in the state trial court and that that judgment was never overturned on appeal. This was the only suit initiated by defendants-appellees then or later against plaintiff-appellant Taylor Drug Stores, Inc. For these reasons and for the detailed reasons set forth in Judge Allen’s memorandum opinions, dated March 24,1974 and January 23, 1976, we affirm the summary judgment entered in this case. This case is clearly distinguishable from California Motor Transport Co. v. Tracking Unlimited, 404 U.S. 508,92 S.Ct. 609,30 L.Ed.2d 642 (1972). Defendants-appellees’ 1969 Jefferson County Circuit Court suit against Taylor Drug Stores, Inc., was concededly designed to eliminate Taylor Drug’s Sunday competition. But such recourse to the courts to enforce a lawful statute was also within their rights under the First Amendment to the Constitution of the United States as those rights have been described in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).
The judgment of the District Court is affirmed.
. Count I of the complaint had previously been dismissed and is not at issue in this appeal.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
CASTANEDA, SHERIFF v. PARTIDA
No. 75-1552.
Argued November 9, 1976
Decided March 23, 1977
Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Marshall, J., filed a concurring opinion, post, p. 501. Burger, C. J., filed a dissenting opinion, in which Powell and Rehnquist, JJ., joined, post, p. 504. Stewart, J., filed a dissenting opinion, post, p. 507. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 507.
Thomas Parker Beery argued the cause and filed a brief for petitioner.
David G. Hall argued the cause for respondent. With him on the brief was Melvin L. Wulf.
Mr. Justice Blackmun
delivered the opinion of the Court.
The sole issue presented in this case is whether the State of Texas, in the person of petitioner, the Sheriff of Hidalgo County, successfully rebutted respondent prisoner’s prima facie showing of discrimination against Mexican-Americans in the state grand jury selection process. In his brief, petitioner, in claiming effective rebuttal, asserts:
“This list [of the grand jurors that indicted respondent] indicates that 50 percent of the names appearing thereon were Spanish. The record indicates that 3 of the 5 jury commissioners, 5 of the grand jurors who returned the indictment, 7 of the petit jurors, the judge presiding at the trial, and the Sheriff who served notice on the grand jurors to appear had Spanish surnames.” Brief for Petitioner 6.
I
This Court on prior occasions has considered the workings of the Texas system of grand jury selection. See Hernandez v. Texas, 347 U.S. 475 (1954); Cassell v. Texas, 339 U. S. 282 (1950); Akins v. Texas, 325 U. S. 398 (1945); Hill v. Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940). Texas employs the “key man” system, which relies on jury commissioners to select prospective grand jurors from the community at large. The procedure begins with the state district judge’s appointment of from three to five persons to serve as jury commissioners. Tex. Code Crim. Proc., Art. 19.01 (1966). The commissioners then “shall select not less than 15 nor more than 20 persons from the citizens of different portions of the county” to compose the list from which the actual grand jury will be drawn. Art. 19.06 (Supp. 1976-1977). When at least 12 of the persons on the list appear in court pursuant to summons, the district judge proceeds to “test their qualifications.” Art. 19.21. The qualifications themselves are set out in Art. 19.08: A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be “of sound mind and good moral character,” be literate, have no prior felony conviction, and be under no pending indictment “or other legal accusation for theft or of any felony.” Interrogation under oath is the method specified for testing the prospective juror’s qualifications. Art. 19.22. The precise questions to be asked are set out in Art. 19.23, which, for the most part, tracks the language of Art. 19.08. After the court finds 12 jurors who meet the statutory qualifications, they are impaneled as the grand jury. Art. 19.26.
Respondent, Rodrigo Partida, was indicted in March 1972 by the grand jury of the 92d District Court of Hidalgo County for the crime of burglary of a private residence at night with intent to rape. Hidalgo is one of the border counties of southern Texas. After a trial before a petit jury, respondent was convicted and sentenced to eight years in the custody of the Texas Department of Corrections. He first raised his claim of discrimination in the grand jury selection process on a motion for new trial in the State District Court. In support of his motion, respondent testified about the general existence of discrimination against Mexican-Americans in that area of Texas and introduced statistics from the 1970 census and the Hidalgo County grand jury records. The census figures show that in 1970, the population of Hidalgo County was 181,535. United States Bureau of the Census, 1970 Census of Population, Characteristics of the Population, vol. 1, pt. 45, § 1, Table 119, p. 914. Persons of Spanish language or Spanish surname totaled 143,611. Ibid., and id., Table 129, p. 1092. On the assumption that all the persons of Spanish language or Spanish surname were Mexican-Americans, these figures show that 79.1% of the county’s population was Mexican-American.
Respondent’s data compiled from the Hidalgo County grand jury records from 1962 to 1972 showed that over that period, the average percentage of Spanish-surnamed grand jurors was 39%. In the 2½-year period during which the District Judge who impaneled the jury that indicted respondent was in charge, the average percentage was 45.5%. On the list from which the grand jury that indicted respondent was selected, 50% were Spanish surnamed. The last set of data that respondent introduced, again from the 1970 census, illustrated a number of ways in which Mexican-Americans tend to be underprivileged, including poverty-level incomes, less desirable jobs, substandard housing, and lower levels of education. The State offered no evidence at all either attacking respondent’s allegations of discrimination or demonstrating that his statistics were unreliable in any way.
The State District Court, nevertheless, denied the motion for a new trial.
On appeal, the Texas Court of Criminal Appeals affirmed the conviction. Partida v. State, 506 S. W. 2d 209 (1974). Reaching the merits of the claim of grand jury discrimination, the court held that respondent had failed to make out a prima facie case. In the court’s view, he should have shown how many of the females who served on the grand juries were Mexican-Americans married to men with Anglo-American surnames, how many Mexican-Americans were excused for reasons of age or health, or other legal reasons, and how many of those listed by the census would not have met the statutory qualifications of citizenship, literacy, sound mind, moral character, and lack of criminal record or accusation. Id., at 210—211. Quite beyond the uncertainties in the statistics, the court found it impossible to believe that discrimination could have been directed against a Mexican-American, in light of the many elective positions held by Mexican-Americans in the county and the substantial representation of Mexican-Americans on recent grand juries. Id., at 211. In essence, the court refused to presume that Mexican-Americans would discriminate against their own kind.
After exhausting his state remedies, respondent filed his petition for habeas corpus in the Federal District Court, alleging a denial of due process and equal protection, guaranteed by the Fourteenth Amendment, because of gross underrepresentation of Mexican-Americans on the Hidalgo County grand juries. At a hearing at which the state transcript was introduced, petitioner presented the testimony of the state judge who selected the jury commissioners who had compiled the list from which respondent's grand jury was taken. The judge first reviewed the State’s grand jury selection process. In selecting the jury commissioners, the judge stated that he tried to appoint a greater number of Mexican-Americans than members of other ethnic groups. He testified that he instructed the commissioners about the qualifications of a grand juror and the exemptions provided by law. The record is silent, however, with regard to instructions dealing with the potential problem of discrimination directed against any identifiable group. The judge admitted that the actual results of the selection process had not produced grand jury lists that were “representative of the ethnic balance in the community.” App. 84. The jury commissioners themselves, who were the only ones in a position to explain the apparent substantial underrepresentation of Mexican-Americans and to provide information on the actual operation of the selection process, were never called.
On the basis of the evidence before it, the court concluded that respondent had made out a “bare prima facie case” of invidious discrimination with his proof of “a long continued disproportion in the composition of the grand juries in Hidalgo County.” 384 F. Supp. 79, 90 (SD Tex. 1974) (emphasis in original). Based on an examination of the reliability of the statistics offered by respondent, however, despite the lack of evidence in the record justifying such an inquiry, the court stated that the prima facie case was weak. The court believed that the census statistics did not reflect the true situation accurately, because of recent changes in the Hidalgo County area and the court’s own impression of the demographic characteristics of the Mexican-American community. On the other hand, the court recognized that the Texas key-man system of grand jury selection was highly subjective, and was “archaic and inefficient,” id., at 91, and that this was a factor arguing for less tolerance in the percentage differences. On balance, the court’s doubts about the reliability of the statistics, coupled with its opinion that Mexican-Americans constituted a “governing majority” in the county, caused it to conclude that the prima facie case was rebutted. The “governing majority” theory distinguished respondent’s case from all preceding cases involving similar disparities. On the basis of those findings, the court dismissed the petition.
The United States Court of Appeals for the Fifth Circuit reversed. 524 F. 2d 481 (1975). It agreed with the District Court that respondent had succeeded in making out a prima facie case. It found, however, that the State had failed to rebut that showing. The “governing majority” theory contributed little to the State’s case in the absence of specific proof to explain the disparity. In light of the State’s abdication of its responsibility to introduce controverting evidence, the court held that respondent was entitled to prevail.
We granted certiorari to consider whether the existence of a “governing majority” in itself can rebut a prima facie case of discrimination in grand jury selection, and, if not, whether the State otherwise met its burden of proof. 426 U. S. 934 (1976).
III
A. This Court has long recognized that “it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State . . . .” Hernandez v. Texas, 347 U. S., at 477. See Alexander v. Louisiana, 405 U. S. 625, 628 (1972); Carter v. Jury Comm’n, 396 U. S. 320, 330 (1970). See also Peters v. Kiff, 407 U. S. 493, 497 (1972) (plurality opinion); id., at 507 (dissenting opinion). While the earlier cases involved absolute exclusion of an identifiable group, later cases established the principle that substantial underrepresentation of the group constitutes a constitutional violation as well, if it results from purposeful discrimination. See Turner v. Fouche, 396 U. S. 346 (1970); Carter v. Jury Comm’n, supra; Whitus v. Georgia, 385 U. S. 545, 552 (1967); Swain v. Alabama, 380 U. S. 202 (1965); Cassell v. Texas, 339 U. S. 282 (1950). Recent cases have established the fact that an official act is not unconstitutional solely because it has a racially disproportionate impact. Washington v. Davis, 426 U. S. 229, 239 (1976) ; see Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 264-265 (1977). Nevertheless, as the Court recognized in Arlington Heights, “[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” Id., at 266. In Washington v. Davis, the application of these principles to the jury cases was considered:
“It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an 'unequal application of the law . . . as to show intentional discrimination.’ . . . A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community, . . . or with racially non-neutral selection procedures . . . . With a prima facie case made out, ‘the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.’ Alexander [v. Louisiana, 405 U. S.,] at 632.” 426 U. S., at 241.
See Arlington Heights, supra, at 266 n. 13.
Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Hernandez v. Texas, 347 U. S., at 478-479. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480. See Norris v. Alabama, 294 U. S. 587 (1935). This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class. Hernandez v. Texas, 347 U. S., at 480. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U. S., at 241; Alexander v. Louisiana, 405 U. S., at 630. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
B. In this case, it is no longer open to dispute that Mexican-Americans are a clearly identifiable class. See, e. g., Hernandez v. Texas, supra. Cf. White v. Regester, 412 U. S. 755, 767 (1973). The statistics introduced by respondent from the 1970 census illustrate disadvantages to which the group has been subject. Additionally, as in Alexander v. Louisiana, the selection procedure is not racially neutral with respect to Mexican-Americans; Spanish surnames are just as easily identifiable as race was from the questionnaires in Alexander or the notations and card colors in Whitus v. Georgia, supra, and in Avery v. Georgia, 345 U. S. 559 (1953).
The disparity proved by the 1970 census statistics showed that the population of the county was 79.1% Mexican-American, but that, over an 11-year period, only 39% of the persons summoned for grand jury service were Mexican-American. This difference of 40% is greater than that found significant in Turner v. Fouche, 396 U. S. 346 (1970) (60% Negroes in the general population, 37% on the grand jury lists). Since the State presented no evidence showing why the 11-year period was not reliable, we take it as the relevant base for comparison. The mathematical disparities that have been accepted by this Court as adequate for a prima facie case have all been within the range presented here. For example, in Whitus v. Georgia, 385 U. S. 545 (1967), the number of Negroes listed on the tax digest amounted to 27.1% of the taxpayers, but only 9.1% of those on the grand jury venire. The disparity was held to be sufficient to make out a prima facie case of discrimination. See Sims v. Georgia, 389 U. S. 404 (1967) (24.4% of tax lists, 4.7% of grand jury lists); Jones v. Georgia, 389 U. S. 24 (1967) (19.7% of tax lists, 5% of jury list). We agree with the District Court and the Court of Appeals that the proof in this case was enough to establish a prima facie case of discrimination against the Mexican-Americans in the Hidalgo County grand jury selection.
Supporting this conclusion is the fact that the Texas system of selecting grand jurors is highly subjective. The facial constitutionality of the key-man system, of course, has been accepted by this Court. See, e. g., Carter v. Jury Comm’n, 396 U. S. 320 (1970); Akins v. Texas, 325 U. S. 398 (1945) ; Smith v. Texas, 311 U. S. 128 (1940). Nevertheless, the Court has noted that the system is susceptible of abuse as applied. See Hernandez v. Texas, 347 U. S., at 479. Additionally, as noted, persons with Spanish surnames are readily identifiable.
The showing made by respondent therefore shifted the burden of proof to the State to dispel the inference of intentional discrimination. Inexplicably, the State introduced practically no evidence. The testimony of the State District Judge dealt principally with the selection of the jury commissioners and the instructions given to them. The commissioners themselves were not called to testify. A case such as Swain v. Alabama, 380 U. S., at 207 n. 4, 209, illustrates the potential usefulness of such testimony, when it sets out in detail the procedures followed by the commissioners. The opinion of the Texas Court of Criminal Appeals is particularly revealing as to the lack of rebuttal evidence in the record:
“How many of those listed in the census figures with Mexican-American names were not citizens of the state, but were so-called ‘wet-backs’ from the south side of the Rio Grande; how many were migrant workers and not residents of Hidalgo County; how many were illiterate and could not read and write; how many were not of sound mind and good moral character; how many had been convicted of a felony or were under indictment or legal accusation for theft or a felony; none of these facts appear in the record.” 506 S. W. 2d, at 211 (emphasis added).
In fact, the census figures showed that only a small part of the population reported for Hidalgo County was not native born. See n. 6, supra. Without some testimony from the grand jury commissioners about the method by which they determined the other qualifications for grand jurors prior to the statutory time for testing qualifications, it is impossible to draw any inference about literacy, sound mind and moral character, and criminal record from the statistics about the population as a whole. See n. 8, supra. These are questions of disputed fact that present problems not amenable to resolution by an appellate court. We emphasize, however, that we are not saying that the statistical disparities proved here could never be explained in another case; we are simply saying that the State did not do so in this case. See Turner v. Fouche, 396 U. S., at 361.
C. In light of our holding that respondent proved a prima facie case of discrimination that was not rebutted by any of the evidence presently in the record, we have only to consider whether the District Court’s “governing majority” theory filled the evidentiary gap. In our view, it did not dispel the presumption of purposeful discrimination in the circumstances of this case. Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group. Indeed, even the dissent of Mr. Justice Powell does not suggest that such a presumption would be appropriate. See post, at 514-516, n. 6, 516 n. 7. The problem is a complex one, about which widely differing views can be held, and, as such, it would be somewhat precipitate to take judicial notice of one view over another on the basis of a record as barren as this.
Furthermore, the relevance of a governing majority of elected officials to the grand jury selection process is questionable. The fact that certain elected officials are Mexican-American demonstrates nothing about the motivations and methods of the grand jury commissioners who select persons for grand jury lists. The only arguably relevant fact in this record on the issue is that three of the five jury commissioners in respondent’s case were Mexican-American. Knowing only this, we would be forced to rely on the reasoning that we have rejected—that human beings would not discriminate against their own kind—in order to find that the presumption of purposeful discrimination was rebutted. Without the benefit of this simple behavioral presumption, discriminatory intent can be rebutted only with evidence in the record about the way in which the commissioners operated and their reasons for doing so. It was the State’s burden to supply such evidence, once respondent established his prima facie case. The State’s failure in this regard leaves unchallenged respondent’s proof of purposeful discrimination.
Finally, even if a “governing majority” theory has general applicability in cases of this kind, the inadequacy of the record in this case does not permit such an approach. Among the evidentiary deficiencies are the lack of any indication of how long the Mexican-Americans have enjoyed “governing majority” status, the absence of information about the relative power inherent in the elective offices held by Mexican-Americans, and the uncertain relevance of the general political power to the specific issue in this case. Even for the most recent time period, when presumably the political power of Mexican-Americans was at its greatest, the discrepancy between the number of Mexican-Americans in the total population and the number on the grand jury lists was substantial. Thus, under the facts presented in this case, the “governing majority” theory is not developed fully enough to satisfy the State’s burden of rebuttal.
IV
Rather than relying on an approach to the jury discrimination question that is as faintly defined as the “governing majority” theory is on this record, we prefer to look at all the facts that bear on the issue, such as the statistical disparities, the method of selection, and any other relevant testimony as to the manner in which the selection process was implemented. Under this standard, the proof offered by respondent was sufficient to demonstrate a prima facie case of discrimination in grand jury selection. Since the State failed to rebut the presumption of purposeful discrimination by competent testimony, despite two opportunities to do so, we affirm the Court of Appeals’ holding of a denial of equal protection of the law in the grand jury selection process in respondent’s case.
It is so ordered.
The other principal state mode of juror selection is a random method similar to that used in the federal system. See 28 U. S. C. § 1864. See generally Sperlich & Jaspovice, Grand Juries, Grand Jurors and the Constitution, 1 Hastings Const. L. Q. 63, 68 (1974).
During the time period covered by this case, the statute was amended to omit the requirement that the commissioners be freeholders in the county. 1971 Tex. Gen. Laws, c. 131, § 1. That change has no bearing on the issues before us.
Prior to 1965, the law directed the commissioners to select “sixteen men.” The legislature amended the statute that year to substitute the words “twenty persons” for “sixteen men.” 1965 Tex. Gen. Laws, c. 722, p. 317. In 1967, the law was amended again to provide the present range of from 15 to 20 persons. 1967 Tex. Gen. Laws, c. 515, § 1. These changes in the number of persons required to be on the list account for the jump from 16 to 20 in the grand jury list statistics set forth in n. 7, infra.
In the state courts and in the federal courts on habeas, the State argued that respondent’s challenge was not timely raised as a matter of state procedure, and therefore that he waived any complaint of this kind that he might have. Since the Texas courts considered the claim on its merits, however, we are free to do so here. See Coleman v. Alabama, 377 U. S. 129 (1964); cf. Francis v. Henderson, 425 U. S. 536, 542 n. 5 (1976). Furthermore, petitioner abandoned the waiver point in his petition for certiorari.
For our purposes, the terms “Spanish-surnamed” and “Mexican-American” are used as synonyms for the census designation “Persons of Spanish Language or Spanish Surname.” Persons of Spanish language include both those whose mother tongue is Spanish and all other persons in families in which the head of the household or spouse reported Spanish as the mother tongue. Persons of Spanish surname, as the census uses that term, are determined by reference to a list of 8,000 Spanish surnames compiled by the Immigration and Naturalization Service. For Texas, social and economic characteristics are presented for persons of Spanish language combined with all other persons of Spanish surname in the census reports. United States Bureau of the Census, 1970 Census of Population, Characteristics of the Population, vol. 1, pt. 45, § 2, App. B.
At oral argument, counsel for petitioner appears to have suggested that the presence of illegal aliens who have Spanish surnames might inflate the percentage of Mexican-Americans in the county’s population. Tr. of Oral Arg. 10-12. We cannot agree that the presence of noncitizens makes any practical difference. Table 119 of the census breaks down the 181,535 people who composed the total county population into three groups: native of native parentage, native of foreign parentage, and foreign born. The only persons as to whom the assumption of noncitizenship would be logically sustainable are the foreign born. Even for them, it is probable that some were naturalized citizens. Furthermore, only 22,845 persons were in the “foreign born” category. If those persons are excluded from the population of the county, the total becomes 158,690. Assuming that every foreign-born person was counted as a Spanish-surnamed person (an assumption that favors the State), the total number of Mexican-Americans is reduced from 143,611 to 120,766. Using these adjusted figures, Mexican-Americans constitute 76.1% of the county’s population, a figure only 3%, and thus negligibly, smaller than the one used throughout this litigation. For consistency, we shall continue to refer to the population figures for the entire county, particularly since the State has not shown why those figures are unreliable.
The statistics for grand jury composition can be organized as follows:
Year No. persons on grand jury list Av. No. Spanish surnamed per list Percentage Spanish surnamed
1962 16 6 37.5%
1963 16 5.75 35.9%
1964 16 4.75 29.7%
1965 16.2 5 30.9%
1966 20 7.5 37.5%
1967 20.25 7.25 35.8%
1968 20 6.6 33%
1969 20 10 50%
1970 20 8 40%
1971 20 9.4 47%
1972 20 10.5 52.5%
Of the 870 persons who were summoned to serve as grand jurors over the 11-year period, 339, or 39%, were Spanish surnamed. See table showing Hidalgo County grand jury panels from 1962 to 1972, App. 17-18.
At oral argument, counsel for petitioner suggested that the date regarding educational background explained the discrepancy between the percentage of Mexican-Americans in the total population and the percentage on the grand jury lists. Tr. of Oral Arg. 8. For a variety of reasons, we cannot accept that suggestion. First, under the Texas method of selecting grand jurors, qualifications are not tested until the persons on the list appear in the District Court. Prior to that time, assuming an unbiased selection procedure, persons of all educational characteristics should appear on the list. If the jury commissioners actually exercised some means of winnowing those who lacked the ability to read and write, it was incumbent on the State to call the commissioners and to have them explain how this was done. In the absence of any evidence in the record to this effect, we shall not assume that the only people excluded from grand jury service were the illiterate.
Second, it is difficult to draw valid inferences from the raw census data, since the data are incomplete in some places and the definition of “literacy” would undoubtedly be the subject of some dispute in any event. The State’s failure to discuss the literacy problem at any point prior to oral argument compounds the difficulties. One gap in the data occurs with respect to the younger persons in the jury pool. The census reports for educational background cover only those who are 25 years of age and above. Yet the only age limitation on eligibility for grand jury service is qualification to vote. Tex. Code Crim. Proc., Art. 19.08 (Supp. 1976-1977). During the period to which the census figures apply, a person became qualified to vote at age 21. Tex. Elec. Code, Art. 5.01 (1967). (In 1975, Art. 5.01 was amended to give the franchise to all persons 18 and over. 1975 Tex. Gen. Laws, c. 682, § 3.) It is not improbable that the educational characteristics of persons in the younger age group would prove to be favorable to Mexican-Americans.
Finally, even assuming that the statistics for persons age 25 and over are sufficiently representative to be useful, a significant discrepancy still exists between the number of Spanish-surnamed people and the level of representation on grand jury lists. Table 83 of the 1970 census shows that of a total of 80,049 persons in that age group, 13,205 have no schooling. (Data for McAllen-Pharr-Edinburg Standard Metropolitan Statistical Area. This SMSA is identical to Hidalgo County.) Table 97 shows that of the 55,949 Spanish-surnamed persons in the group, 12,817 have no schooling. This means that of the 24,100 persons of all other races and ethnic groups, 388 have no schooling. Translated into percentages, 22.9% of the Spanish-surnamed persons have no schooling, and 1.6% of the others have no schooling. This means that 43,132 of the Spanish-surnamed persons have some schooling and 23,712 of the others have some schooling. The Spanish-surnamed persons thus represent 65% of the 66,844 with some schooling, and the others 35%. The 65% figure still creates a significant disparity when compared to the 39% representation on grand juries shown over the 11-year period involved here.
The suggestion is made in the dissenting opinion of The Chief Justice, post, at 504-506, that reliance on eligible population figures and allowance for literacy would defeat respondent’s prima facie showing of discrimination. But the 65% to 39% disparity between Mexican-Americans over the age of 25 who have some schooling and Mexican-Americans represented on the grand jury venires takes both of The Chief Justice’s concerns into account. Statistical analysis, which is described in more detail in n. 17, infra, indicates that the discrepancy is significant. If one assumes that Mexican-Americans constitute only 65% of the jury pool, then a detailed calculation reveals that the likelihood that so substantial a discrepancy would occur by chance is less than 1 in 1050.
We prefer not to rely on the 65% to 39% disparity, however, since there are so many implicit assumptions in this analysis, and we consider it inappropriate for us, as an appellate tribunal, to undertake this kind of inquiry without a record below in which those assumptions were tested. We rest, instead, on the fact that the record does not show any way
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_casesourcestate
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27
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
DAVIS v. MICHIGAN DEPARTMENT OF THE TREASURY
No. 87-1020.
Argued January 9, 1989
Decided March 28, 1989
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 818.
Paul S. Davis, pro se, argued the cause and filed briefs for appellant.
Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Car-mack, and Steven W. Parks.
Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General.
Joseph B. Scott and Michael J. Kotor filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan’s tax scheme violates federal law.
I
Appellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U. S. C. §8831 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. §206.30(l)(f) (Supp. 1988). That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits. The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.
In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant’s complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were “not legally taxable under the Michigan Income Tax Law” and that the State’s inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U. S. C. § 111, which preserves federal employees’ immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, §4, 53 Stat. 575, codified, as amended, at 4 U. S. C. § 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10.
The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant’s claim that 4 U. S. C. § 111 invalidated the State’s tax on appellant’s federal benefits. Noting that §111 applies only to federal “employees,” the court determined that appellant’s status under federal law was that of an “annuitant” rather than an employee. As a consequence, the court concluded that § 111 “has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act.” Id., at 104, 408 N. W. 2d, at 435.
The Michigan Court of Appeals next rejected appellant’s contention that the doctrine of intergovernmental tax immunity rendered the State’s tax treatment of federal retirement benefits unconstitutional. Conceding that “a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals,” id., at 104, 408 N. W. 2d, at 436, the court examined the State’s justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State’s interest in “attracting and retaining . . . qualified employees” was a “legitimate state objective which is rationally achieved by a retirement plan offering economic inducements,” and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436.
The Supreme Court of Michigan denied appellant’s application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. 487 U. S. 1217 (1988).
II
Appellant places principal reliance on 4 U. S. C. § 111. In relevant part, that section provides:
“The United States consents to the taxation' of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”
As a threshold matter, the State argues that § 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to “the taxation of pay or compensation for personal services as an officer or employee of the United States.” (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual’s salary and years of service. 5 U. S. C. § 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F. 2d 637, 639 (CA Fed.), cert. denied, 474 U. S. 842 (1985); Kizas v. Webster, 227 U. S. App. D. C. 327, 339, 707 F. 2d 524, 536, (1983), cert. denied, 464 U. S. 1042 (1984); Clark v. United States, 691 F. 2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered “as an officer or employee of the United States.” Appellant’s federal retirement benefits are deferred compensation earned “as” a federal employee, and so are subject to § 111.
The State points out, however, that the reference to “compensation for personal services as an officer or employee” occurs in the first part of § 111, which defines the extent of Congress’ consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of “discriminat[ion] against the officer or employee because of the source of the pay or compensation.” From this the State concludes that, whatever the scope of Congress’ consent to taxation in the first portion of § 111, the nondiscrimination clause applies only to current federal employees.
Although the State’s hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, 467 U. S. 822, 828 (1984). When the first part of §111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: “The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate . . . because of the source of the pay or compensation.” The reference to “the pay or compensation” in the last clause of § 111 must, in context, mean the same “pay or compensation” defined in the first part of the section. Since that “pay or compensation” includes retirement benefits, the nondiscrimination clause must include them as well.
Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of § 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation.
1 — 1 HH hH
Section 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall’s opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government’s delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437.
For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Com missioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule “was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax ‘on’ the government because it burdened the government’s power to enter into the contract.” South Carolina v. Baker, 485 U. S. 505, 518 (1988).
In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, 304 U. S. 405 (1938), the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 486-487 (1939), overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.
It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O’Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees’ immunity from federal taxation. See H. R. Rep. No. 26, swpra, at 2 (“There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), . . . that . . . Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States”).
Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, §4 of the proposed Act (now §111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes.
By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, § 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine.
Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that “operat[e] so as to discriminate against the Government or those with whom it deals.” United States v. City of Detroit, 355 U. S. 466, 473 (1958). See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, 272 U. S. 713, 714-715 (1927); Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 385 (1960); Memphis Bank & Trust Co. v. Gamer, 459 U. S. 392, 397, and n. 7 (1983).
In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that § 111 was consciously drafted against the background of the Court’s tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in § 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); Morissette v. United States, 342 U. S. 246, 263 (1952). Hence, we conclude that the retention of immunity in § 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U. S. C. §742, which permits only ‘“nondiscriminatory’” state taxation of interest on federal obligations, as “principally a restatement of the constitutional rule”).
On its face, § 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication §111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether § 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity.
IV
It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State’s inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes.
A
In support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government’s ability to perform its governmental functions, the constitutional doctrine has not been violated.
It is true that intergovernmental tax immunity is based on the need to protect each sovereign’s governmental operations from undue interference by the other. Graves, 306 U. S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation’s claim that a state tax discriminated against private lessees of federal land. We concluded that the tax “discriminate[d] unconstitutionally against the United States and its lessee,” and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so.
B
Under our precedents, “[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that “our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved,” because “the Government’s interests must be weighed in the balance.” Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, “significant differences between the two classes.” Id., at 383-385.
The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are “significant differences between the two classes” themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384.
Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State’s view, justify the inconsistent tax treatment.
Even assuming the State’s estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well).
V
For these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931).
Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan’s income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy “is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984). See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in judgment).
In this case, appellant’s claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U. S., at 752 (“Federal courts may not assess or levy taxes”). The permissibility of either approach, moreover, depends in part on the severability of a portion of §206.30(l)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933). It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
As a result of a series of amendments, this subsection has been variously designated as (l)(f), (l)(g), and (l)(h) at times relevant to this litigation. This opinion will refer only to the current statutory designation, §206.30(l)(f).
In pertinent part, the statute provides:
“(1) ‘Taxable income’. . . means adjusted gross income as defined in the internal revenue code subject to the following adjustments:
“(f) Deduct to the extent included in adjusted gross income:
“(i) Retirement or pension benefits received from a public retirement system of or created by an act of this state or a political subdivision of this state.
“(iv) Retirement or pension benefits from any other retirement or pension system as follows:
“(A) For a single return, the sum of not more than $7,500.00.
“(B) For a joint return, the sum of not more than $10,000.00.” Mich. Comp. Laws Ann. § 206.30(l)(f) (Supp. 1988).
Subsection (f)(iv) of this provision exempts a portion of otherwise taxable retirement benefits from taxable income, but appellant’s retirement pay from all nonstate sources exceeded the applicable exemption amount in each of the tax years relevant to this case.
The State suggests that the legislative history does not support this interpretation of § 111, pointing to statements in the Committee Reports that describe the scope of § 111 without using the phrase “service as an officer or employee.” The language of the statute leaves no room for doubt on this point, however, so the State’s attempt to establish a minor inconsistency with the legislative history need not detain us. Legislative history is irrelevant to the interpretation of an unambiguous statute. United Air Lines, Inc. v. McMann, 434 U. S. 192, 199 (1977).
The dissent argues that this tax is nondiscriminatory, and thus constitutional, because it “draws no distinction between the federal employees or retirees and the vast majority of voters in the State.” Post, at 823. In Phillips Chemical Co., however, we faced that precise situation: an equal tax burden was imposed on lessees of private, tax-exempt property and lessees of federal property, while lessees of state property paid a lesser tax, or in some circumstances none at all. Although we concluded that “[ujnder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property,” 361 U. S., at 381, we nonetheless invalidated the State’s tax. This result is consistent with the underlying rationale for the doctrine of intergovernmental tax immunity. The danger that a State is engaging in impermissible discrimination against the Federal Government is greatest when the State acts to benefit itself and those in privity with it. As we observed in Phillips Chemical Co., “it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself.” Id.., at 385.
We also take issue with the dissent’s assertion that “it is peculiarly inappropriate to focus solely on the treatment of state governmental employees” because “[t]he State may always compensate in pay or salary for what it assesses in taxes.” Post, at 824. In order to provide the same after-tax benefits to all retired state employees by means of increased salaries or benefit payments instead of a tax exemption, the State would have to increase its outlays by more than the cost of the current tax exemption, since the increased payments to retirees would result in higher federal income tax payments in some circumstances. This fact serves to illustrate the impact on the Federal Government of the State’s discriminatory tax exemption for state retirees. Taxes enacted to reduce the State’s employment costs at the expense of the federal treasury are the type of discriminatory legislation that the doctrine of intergovernmental tax immunity is intended to bar.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Carl Gregory WITT, Appellant, v. UNITED STATES of America, Appellee.
No. 23065.
United States Court of Appeals Ninth Circuit.
June 6, 1969.
Certiorari Denied Nov. 17, 1969.
See 90 S.Ct. 272.
J. Pierce Harris (argued) of Freeman & Harris, National City, Cal., for appellant.
Edwin L. Miller, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal. (no argument by govt.) for appel-lee.
Before CHAMBERS and KOELSCH, Circuit Judges, and BYRNE, District Judge.
Honorable William M. Byrne, United States Senior District Judge, Los Angeles, California, sitting by designation.
BYRNE, District Judge:
On March 14, 1968, the appellant was indicted on a charge of smuggling marihuana in violation of U.S.C. Title 21, Section 176a. He was convicted in a trial by the Court without a jury.
The appellant contends that Section 176a of the Statute under which he was convicted is unconstitutional, and relies upon Marchetti v. United States, 390 U. S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 716, 19 L.Ed.2d 906; and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923.
In Marchetti, the Supreme Court held that a plea of the Fifth Amendment privilege provided a defense to a prosecution for failure to register and pay the occupational tax on wagers as required by 26 U.S.C. Sections 4411 and 4412. The Court noted that 26 U.S.C. 6107 required lists of wagering taxpayers be furnished to state and local prosecutors on demand, and concluded that compliance with the Statutes would have subjected Marchetti to “real and appreciative” risk of self-incrimination. In Grosso the Court held that the same considerations required the claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. In Haynes the Court held, for the same reasons, that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act.
Subsequent to the filing of the briefs and oral argument in this case, the Supreme Court, on May 19, 1969, decided the case of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. For reasons set forth in our discussion of Leary which follows, we hold that neither the cases relied upon by the appellant, nor Leary, require the reversal of the District Court in this case.
This is a smuggling case; Leary was not. The indictment in Leary originally-charged smuggling marihuana into the United States in violation of 21 U.S.C. Section 176a. Second, it was charged that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of Section 176a. Third, it was alleged that Leary was a transferee of marihuana and had knowingly transported, concealed and facilitated the transportation and concealment of marihuana, without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4644(a) (2).
After both sides had presented their evidence, the District Court dismissed the smuggling count. The Supreme Court theorized (note 4): “Petitioner had testified without contradiction that he had obtained the marihuana in New York, and the District Court apparently reasoned that an article taken out of the United States could not be ‘smuggled’ back into the country, as charged by the indictment.” The jury found Leary guilty on the other two counts.
The Supreme Court granted certiorari to consider two questions: (1) whether Leary’s conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination ; (2) whether Leary was denied due process by the application of the part of 21 U.S.C. § 176a, which provides that a defendant’s possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. The Court held in favor of Leary on both issues and reversed the judgment of the Court of Appeals. But neither issue is in the instant case. This appellant was not charged with a violation of the Marihuana Tax Act, nor did his conviction rest upon the presumption of knowledge of illegal importation which was declared unconstitutional by the Court in Leary.
In Marchetti, Grosso, Haynes and Leary, the Court’s decision in each instance was required by the impact of the registration provisions which, when considered with the statutory direction that the information be conveyed to state and local law enforcement officials, obliged the Court to conclude that a timely and proper assertion of the privilege against self-incrimination provided a complete defense to prosecution under those particular statutes.
Appellant Witt was caught in the very act of smuggling marihuana which should have been invoiced and presented to the Customs officials for inspection in accordance with the Tariff Act of 1930. The Supreme Court has not legalized the smuggling of marihuana nor any other merchandise, nor has it declared the Tariff Act unconstitutional.
We are not persuaded by the appellant’s argument that the Supreme Court’s decisions immunize smugglers from prosecution. The appellant asserts: “In the instant case, appellant Witt was required by Federal law to formally acknowledge possession of property which it was unlawful under State law for him to possess. Providing the Customs Officers with the information as required by law would surely establish a ‘link in the chain’ of evidence tending to establish his guilt.”
The appellant reasons that a person bringing marihuana into the United States must smuggle it in, because to invoice it and present it for inspection would provide a “link in the chain” of evidence tending to establish his guilt, and would violate his Fifth Amendment privilege against self-incrimination. There is about as much logic in that reasoning as there would be in the contention of a bank robber that he was required to shoot the bank guard who ordered him to drop his gun and raise his hands, because to comply with the guard’s orders would be self-incriminating and would provide a “link in the chain” of evidence tending to establish his guilt, all in violation of his Fifth Amendment privilege against self-incrimination. The same claim might be made by the burglar who is accosted by a police officer as he crawls out of the window of a residence at three A.M. and is ordered to submit to an inspection of the luggage he is carrying. To hold that the privilege was available in any of these cases would border on the ridiculous and would effectively frustrate all criminal laws.
The second issue in Leary was whether the application of the presumption contained in 21 U.S.C. § 176a denied Leary due process of law. The Court held that in that case it did. But, as noted above, that issue is not in this case.
This was not a jury trial, and so of course there were no instructions involved. At the time of trial the appellant moved for dismissal on the ground that the presumption contained in the second paragraph of Section 176a was unconstitutional. The District Judge denied the motion, adding: “But as I have always held, that on the smuggling cases the presumption is not indulged in and cannot and should not be.” We agree.
As an additional ground for reversal, appellant asserts that he had been denied his Sixth Amendment right to a speedy trial.
Appellant was arrested December 22nd and taken before the Commissioner on December 26th, at which time counsel was appointed to represent him. He had a bail review on December 29th. The Customs Agency report was received in the United States Attorney’s office on March 9th, 1968. The Grand Jury returned the indictment on March 14th; he was arraigned on March 18th and an omnibus hearing was set for April 4th. The omnibus hearing was held on April 4th and the case was set for trial May 13th. The trial was held on May 15th.
It will be observed that most of the delay is attributable to the late filing of the Customs Agency report. At the hearing on the motion to dismiss, the District Judge commented that the statistics show that between November 1967 and the early part of 1968, an unprecedented amount of marihuana came through the border and the number of arrests during that period increased almost one hundred per cent over the same period the previous year and that the Service got far behind in their reports. When the District Judge inquired whether the appellant had suffered any prejudice such as loss of witnesses or evidence as a result of the delay, appellant’s counsel replied that he believed there had been “damage to the defendant’s psychological attitude”. The appellant offered no evidence at the trial, both he and the co-defendant stipulated to the chain of custody and that the contraband seized from them whs marihuana. It should also be noted that the appellant, who was sentenced to ten years imprisonment, will receive credit for time spent in custody.
We find here no deprivation of the constitutional right to a speedy trial in violation of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Collins v. United States, 157 F.2d 409 (CA 9); Buatte v. United States, 350 F.2d 389 (CA 9); Cohen v. United States, 366 F.2d 363 (CA 9).
Affirmed.
. The present offense is essentially one deriving from the Customs law, and the term “invoiced” as used in the statute carries the meaning attached to it in the Customs law, viz., lawfully entered or declared. See Thomas v. United States, 314 F.2d 936 (CA 5, 1963).
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_casetyp1_7-3-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
KINNEY v. CHICAGO GREAT WESTERN R. CO.
(Circuit Court of Appeals, Eighth Circuit.
January 31, 1927.)
No. 7283.
1. Railroads <@=>350(33) — Evidence, of negll- ■ gence in operating locomotive colliding with truck held insufficient for jury under doctrine of last clear chance.
Evidence in action against railroad for injuries at crossing by reason of collision of locomotive and plaintiff’s truck held insufficient to require submission of case to jury on doctrine of last jclear chance.
2. Negligence <@=>83 — “Last clear chance” doctrine is inapplicable, unless peril is discovered in time to prevent injury by exercising ordinary care.
Doctrine of “last clear chance” is not applicable, unless peril of injured party is actually discovered and appreciated in time to prevent his injury by the exercise of ordinary care.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Last Clear Chance.]
3. Negligence <@=>83 — Doctrine of last clear chance is invoked where plaintiff contributed to defendant’s negligence, but defendant possesses last opportunity of avoiding injury.
Doctrine of last clear chance, applied as exception of defense of contributory negligence, is to be invoked in case where plaintiff has contributed to negligence of defendant, but where defendant possessed last opportunity of avoiding injury and had knowledge thereof.
In Error to the District Court of the United States for the Northern District of Iowa; George C. Scott, Judge.
Action by George Kinney against the Chicago Great Western Railroad Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
Alfred Longley, of Waterloo, Iowa (R. J. O’Brien, of Independence, Iowa, and Edwards, Longley, Ransier & Harris, of Waterloo, Iowa, on the brief), for plaintiff in error.
Clifford V. Cox, of Des Moines, Iowa (Donald Evans and William F. Riley, both of Des Moines, Iowa, on the brief), for defendant in error.
Before BOOTH, Circuit Judge, and KENNAMER, District Judge.
KENNAMER, District Judge.
Plaintiff in error sought the recovery of damages from the defendant, for injuries received at a crossing of defendant’s tracks, in the town of Eurora, Iowa, by reason of a collision of a locomotive and plaintiff’s truck. At the close of plaintiff’s testimony the trial court directed a verdict for the defendant, and the only error assigned and presented upon this appeal is the direction of the verdict.
The evidence adduced by the plaintiff is that, on the day of the accident, plaintiff, accompanied by a Mr. Berryman, who was seated beside him, was driving a Ford truck with doors on each side of the cab; that he sought to cross defendant’s tracks, which run east and west, traveling in a southerly direction; that plaintiff and Berryman were engaged in conversation, but as they approehed the crossing were driving very slowly, and at the rate of from 4 'to 5 miles per hour. The first plaintiff knew of an approaching train upon reaching the crossing was the warning given by two small children, who waved their hands and shouted. This warning induced Mr. Berryman to jump from the truck, but plaintiff endeavored to cross the tracks in his truck. He succeeded in getting the front wheels of the truck across the rail when the locomotive struck the Ford and pushed it along the track, all during which time plaintiff was attempting to get out of the cab. The testimony further discloses that plaintiff was injured as a result of the accident.
The engineer in control of defendant’s locomotive at the time of the collision testified that he was proceeding in an easterly direction, at a rate of speed of from 4 to 5 miles per hour; that the speed of the locomotive had been retarded at the station to receive orders, which were received by the fireman; that as the locomotive passed over the crossing the fireman was standing at his left and facing him, reading the orders; that at some distance east of the crossing, approximately 50 feet, he perceived a jar and, slowing down the speed at which the locomotive was proceeding, looked out of the side of the cab window in order to see the front of the engine. Seeing something unusual, he immediately applied the emergency air, and did everything within his power to stop the locomotive as quickly as possible, although he did not know with what he had collided. There was evidence to the effect that plaintiff’s body was lying about 174 feet from the point where the truck was struck, and that an engine equipped as the one in the collision, having proper brakes, could have been stopped within a space of from 10 to 20 feet, if running at the rate of from 4 to 5 miles per hour.
Portions of the opening, statement to the jury made by counsel for plaintiff should be noted, in which, he said: “The evidence will show, it might as well be stated at one time as another, that after Mr. Kinney got out onto the first of the four tracks which he had to cross (the track on which he was struck being the fourth as he went from the north to the south) the locomotive was in plain sight. There is no reason why he should not have seen that locomotive, but he didn’t see it and drove in front of it. He had a friend in the car with him, and he didn’t see it either, until just before they got onto the track on which the locomotive was approaching.” It is urged by plaintiff in error that defendant could have avoided injuring plaintiff by using ordinary care after defendant had knowledge of plaintiff’s peril. It was conceded by counsel for plaintiff in the oral argument that the plaintiff was guilty of contributory negligence, but complains of error in the trial court’s direction of a verdict for the defendant.
Plaintiff seeks to impose liability upon the defendant upon the doctrine of “last clear chance,” because plaintiff’s contributory negligence is so very apparent. We are of the opinion, after a careful consideration of the evidence in the record, that the trial court committed no error in directing a verdict in favor of defendant. The evidence was insufficient to justify the trial court in submitting the case to the jury upon the doctrine of “last clear chance.” It is well established in this jurisdiction that the above doctrine is not applicable, unless the peril of the injured party is actually discovered and his peril appreciated in time to prevent his injury by the exercise of ordinary care. Illinois Central Ry. Co. v. Ackerman (C. C. A.) 144 F. 959; Denver City Tramway Co. v. Cobb (C. C. A.) 164 F. 41; Illinois Central Ry. Co. v. Nelson (C. C. A.) 173 F. 915; Hart v. Northern Pacific Ry. Co. (C. C. A.) 196 F. 180; A. T. & S. P. Ry. Co. v. Taylor (C. C. A.) 196 F. 878; Iowa Central Ry. Co. v. Walker (C. C. A.) 203 F. 685; Marshall v. Hines (C. C. A.) 271 F. 166; Miller v. Canadian Northern Ry. Co. (C. C. A.) 281 F. 664; Wheelock v. Clay (C. C. A.) 13 F.(2d) 972; Allnutt v. Missouri Pacific R. R. Co. (C. C. A.) 8 F.(2d) 604.
The “last clear chance” doctrine is one applied by courts as an exception to the defense of contributory negligence. It is to be invoked in cases where plaintiff has contributed to the negligence of the defendant, but in which case the defendant possessed the las't opportunity of avoiding the injury, and further that the defendant knew of such. In the instant case there was not sufficient evidence to justify the inference that defendant’s engineer, after discovering the peril of plaintiff, failed to use ordinary care to prevent the injury. A careful’ examination of the record fails to disclose any substantial evidence upon which the jury could have predicated a finding that the engineer in control of the locomotive, upon discovery of plaintiff’s peril or that the locomotive had collided with something, failed to use all reasonable precautions to prevent injury.
The undisputed testimony of the engineer is to the effect that he did not discover the presence of the plaintiff on the track in front of the engine until after he was injured. The evidence is uneontradicted that when perceiving the jar or jerk, the engineer looked to see what, if anything, had caused the same, that he could see some object protruding a very short distance, and before discovering what had been struck, applied his brakes and reversed the engine. We are unable to find in the record any evidence from which any other .inference may be drawn than that the engineer exercised that degree of care and prudence which the law requires of him to avoid and prevent injury. There is no evidence in the record showing that the defendant company’s locomotive was not properly equipped with brakes, etc., and no negligence has been established as to the construction or condition of the locomotive.
The judgment of the trial court is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_genresp1
|
G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
WORLDWIDE CHURCH OF GOD, a California nonprofit corporation; Raymond McNair, and Roderick G. Meredith, Plaintiffs-Appellants, v. Leona McNAIR, and Superior Court of the State of California, Defendants-Appellees.
No. 85-5979.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 9, 1986.
Decided Dec. 5, 1986.
Ralph K. Helge, Ralph K. Helge & Assoc., Pasadena, Cal., Allan Browne, Browne & Woods, Beverly Hills, Cal., for plaintiffs-appellants.
Antony Stuart, DeWitt Clinton, Cty. Counsel, Los Angeles, Cal., for defendants-appellees.
Before SCHROEDER. and FLETCHER, Circuit Judges, and VOORHEES, District-Judge.
Hon. Donald S. Voorhees, United States District Judge for the Western District of Washington, sitting by designation.
FLETCHER, Circuit Judge:
The Worldwide Church of God, Raymond McNair, and Roderick Meredith (the plaintiffs) bring this action under 42 U.S.C. § 1983 against Leona McNair and the Superior Court of the State of California, contending that a state court jury verdict against them for defamation, infliction of emotional distress, and conspiracy is unconstitutional. The plaintiffs assert that the allegedly defamatory statements constitute expressions of religious belief made in the context of an ecclesiastical debate and therefore that the statements are protected under the first amendment. We conclude that the district court lacked subject matter jurisdiction over the action, and that it should have dismissed on that basis.
I. BACKGROUND
Raymond McNair is an Evangelist in the ministry of the Worldwide Church of God (the Church). According to the plaintiffs, Raymond and his former wife Leona McNair began having marital difficulties in 1973. Raymond sought the Church’s counsel, but the marriage did not improve. Raymond obtained an “ecclesiastical determination” that the marriage was no longer “Scripturally bound,” thus enabling him to proceed with a Church-sanctioned divorce in 1976 and remarriage in 1977. Raymond was the first high-ranking Church minister who had been permitted to do so. The plaintiffs state that the Church condemns divorce, except in limited, scripturally-de-fined circumstances, when one spouse has failed to fulfill basic marital responsibilities and has left the Church, or habitually has violated Church doctrine.
The plaintiffs contend that many Church officials felt that Raymond had received special treatment, because of his status in the Church hierarchy and his close friendship with Church leaders. Thus, the McNair divorce and remarriage sparked controversy among the Church ministers, requiring further clarification and explanation. The plaintiffs assert that full explanation was critical, in view of existing serious internal disputes over fundamental Church doctrines at the time.
At a Ministerial Conference in January 1979, and later in a Church publication titled the Pastor’s Report, Roderick Meredith, the Church’s Director of Pastoral Administration and Raymond McNair’s close friend and relative, made statements concerning the McNair divorce. In an address given at the conference, Meredith justified the divorce on the basis of Leona’s conduct. He said that she “was literally cursing him [Raymond] and cursing Mr. Armstrong [the Church’s leader] ... spitting in people’s faces and as hateful as a human being could be;” that she was “one of the major enemies of God’s Church in Southern California;” that Raymond lived “without a wife in a virtual hell on earth” and Leona “just wanted to keep him on a string and get a free ride.”
In the Pastor’s Report, Meredith stated in part that Leona had “tum[ed] his children against him,” “refused to be a wife to him for over two years-to sleep with him, to cook for him, or even civilly communicate with him in a decent manner ... she had deserted him.” (emphasis in original).
Leona McNair sued the Church, Meredith, Raymond McNair, and other Church officials and entities in the California Superior Court. In August, 1984 the jury returned a verdict in Leona’s favor against Raymond McNair, Meredith, and the Church for libel, slander, intentional infliction of emotional distress, and conspiracy. The jury awarded $260,000 in compensatory damages, and $1,000,000 in punitive damages. The plaintiffs’ appeal from that judgment currently is pending in the California Court of Appeal. Enforcement of the judgment has been stayed by posting a bond.
In March 1985, the plaintiffs sued Leona McNair and the California Superior Court in federal district court under 42 U.S.C. § 1988. The plaintiffs contend that the allegedly defamatory statements were made to summarize the factual basis for the Church’s ecclesiastical determination regarding the McNair divorce, and that the statements were part of a doctrinal pronouncement to ministers made in a private ecclesiastical forum. As such, the statements constitutionally are protected, because they constitute expressions of religious belief, the truth of which cannot be questioned in a defamation suit. Alternatively, the plaintiffs argue that the state trial court should have required the jury to find actual malice, based on the New York Times v. Sullivan standard.
The plaintiffs requested the district court to declare the state trial court verdict unconstitutional and to enjoin state court enforcement of the judgment. The district court granted Leona McNair’s motion to dismiss, on Younger abstention grounds. The district court reasoned that the state appellate court would consider the federal constitutional issues on appeal, and that the state had a vital interest in fashioning a law of defamation. The plaintiffs timely appeal.
II. DISCUSSION
As a preliminary matter, we must address the federal court’s jurisdiction. See Solano v. Beilby, 761 F.2d 1369, 1370 (9th Cir.1985) (the court of appeals must raise jurisdictional issues sua sponte). The United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in judicial proceedings. 28 U.S.C. § 1257 provides that the proper court in which to obtain such review is the United States Supreme Court. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983). See Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970) (lower federal courts may not sit in review of state courts’ decisions); Rooker v. Fidelity Trust Co., 263 U. S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923) (district courts may not exercise appellate jurisdiction over state courts); Robinson v. Ariyoshi, 753 F.2d 1468, 1471-72 (9th Cir. 1985) (federal court has no jurisdiction over federal constitutional issues if consideration would require a review of the allegations underlying the state judicial decision), vacated on other grounds, — U.S. -, 106 S.Ct. 3269, 91 L.Ed.2d 560 (1986); Texaco v. Pennzoil Co., 784 F.2d 1133, 1141-42 (2d Cir.) (inferior federal courts may not act as appellate tribunals over state courts) prob. juris, noted, — U.S. -, 106 S.Ct. 3270, 91 L.Ed.2d 561 (1986).
This doctrine applies even when the challenge to the state court decision involves federal constitutional issues. Feldman, 460 U.S. at 484-86, 103 S.Ct. at 1316 (quoting Doe v. Pringle, 550 F.2d 596, 599 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977), for the proposition that “[t]his rule applies even though, as here, the challenge is anchored to alleged deprivations of federally protected due process and equal protection rights”); Robinson, 753 F.2d at 1472. The rationale for this rule is that state courts are as competent as federal courts to decide federal constitutional issues. Allen v. McCurry, 449 U.S. 90, 105, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) (stating that nothing in the legislative history to § 1983 supports the argument that a person claiming a federal right should have an unrestricted opportunity to relitigate in federal court issues already decided in state court; state courts have an obligation and the ability to uphold federal law); Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975) (rejecting the argument that “state judges will not be faithful to their constitutional responsibilities”). In addition, any other rule would result in a waste of judicial resources and unnecessary friction between state and federal courts. See Atlantic Coastline, 398 U.S. at 286, 90 S.Ct. at 1742; Pennzoil, 784 F.2d at 1142.
Although the federal district court may not exercise appellate jurisdiction over the judgment of a state court, a district court does have jurisdiction over a “general” constitutional challenge that does not require review of a final state court decision in a particular case. See Feldman, 460 U.S. at 482-86 & n. 16, 103 S.Ct. at 1314-17 & n. 16; Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314 (9th Cir.1983). This distinction between a permissible general constitutional challenge and an impermissible appeal of a state court determination may be subtle, and difficult to make. See Feldman, 460 U.S. at 485, 103 S.Ct. at 1316 (quoting Doe v. Pringle, 550 F.2d at 597); Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1433 (10th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2019, 85 L.Ed.2d 301 (1985).
In Feldman, 460 U.S. at 486,103 S.Ct. at 1316, the District of Columbia Court of Appeals had refused to admit Feldman to the District of Columbia bar, because he had not graduated from law school, a prerequisite to admission under the District’s bar rules. Feldman filed a complaint in federal district court, claiming that the highest court in the district’s refusal to admit him to the bar violated his constitutional rights.
The United States Supreme Court held that the federal district court had jurisdiction to determine the constitutionality of the district’s bar rule, because such a determination did not require a review of “a state-court judgment in a particular case.” Id. However, the district court had no jurisdiction to review Feldman’s constitutional challenge to the application of the bar rule in his particular case. See Feldman, 460 U.S. at 486-87, 103 S.Ct. at 1316-17. The Supreme Court further explained that “[i]f the constitutional claims presented to a United States district court are inextricably intertwined with the state court’s denial in a judicial proceeding of a particular plaintiffs application for admission to the state bar, then the district court is in essence being called upon to review the state court decision.” Id. at 483-84 n. 16, 103 S.Ct. at 1315 n. 16.
As the Tenth Circuit noted in Razatos, 746 F.2d at 1433, Feldman’s language does not provide a “bright line” rule to distinguish claims that are inextricably intertwined with a state court’s decision from those that are not. The Razatos court concluded that claims are “inextricably intertwined” if the district court must “scrutinize not only the challenged rule itself, but the [state court’s] application of the rule....” If, in order to resolve the claim, “the disti'ict court would have to go beyond mere review of the state rule as promulgated, to an examination of the rule as applied by the state court to the particular factual circumstances of [the plaintiff’s] case,” then the court lacks jurisdiction. See also Brown v. Board of Bar Examiners, 623 F.2d 605, 610 (9th Cir.1980) (because the plaintiff’s complaint and requested relief involved an application of the challenged rule to his particular case, and would require a review of the state court decision, the court concluded that it lacked jurisdiction); Czura v. Supreme Court of South Carolina, 632 F.Supp. 267, 270 (D.S. C.1986) (same).
Robinson, 753 F.2d at 1472, contains this court’s only detailed discussion of Feld-man’s language. In that case, the issue was whether federal constitutional issues that the state court had refused to consider on a petition for rehearing should be deemed “inextricably intertwined” with the state court’s judgment:
Faced with the task of deciding our power to review constitutional issues which arise from a state court proceeding, we view the res judicata require-
ment of full and fair opportunity to litigate, and the Feldman “inextricably intertwined” barrier as two sides of the same coin. Under the rubric of either “jurisdiction” or “res judicata,” the crux of the question is whether there has already been actual consideration of and a decision on the issue presented. If consideration and decision have been accomplished, action in federal court is an impermissible appeal from the state court decision. If no consideration has been given, or any decision on the matter is ambiguous, it is unlikely that the issues presented to the state high court and to the federal court are so “inextricably intertwined” that the federal court cannot take jurisdiction, (citations omitted).
See also Randolph v. Lipscher, 641 F.Supp. 767, 781 n. 8 (D.N.J.1986) (arguing that application of a complex “inextricably intertwined” test is no longer necessary in light of Migra v. Warren City School District Board of Education, 465 U.S. 75,104 S.Ct. 892, 79 L.Ed.2d 56 (1984); the court simply applies res judicata principles).
In the case before us, the California Superior Court considered and rejected the plaintiff’s argument that the allegedly defamatory statements constitutionally were protected. It would be impossible for the federal court to review in the abstract the plaintiffs’ constitutional challenge to the defamation verdict. The essence of the plaintiffs’ constitutional claim is that the statements made at the Ministerial Conference and in the Pastor’s Report were necessary to clarify Church divorce doctrines and to explain the McNair ecclesiastical determination, and that as a result the statements were privileged.
The plaintiffs argue that the allegedly defamatory remarks about Leona McNair constituted part of their religious beliefs. The district court could not evaluate the plaintiffs’ constitutional claims without conducting a review of the state court’s legal determinations and the jury’s verdict. The district court would be required to review the state court’s decision regarding application of the plaintiffs’ federal constitutional theories to the particular factual circumstances of this case. The district court may not do so. See Feldman, 460 U.S. at 486, 103 S.Ct. at 1316; Razatos, 746 F.2d at 1433.
We hold that the district court lacked subject matter jurisdiction over this case. For this reason, we AFFIRM the district court’s dismissal of the action.
. The courts of the District of Columbia, for this analysis, are the equivalent of state courts.
. The Supreme Court held that subject matter jurisdiction existed to consider claims that the rule created an irrebuttable presumption that only law school graduates are competent to practice law; that the rule discriminated against persons with equivalent legal training; and that it impermissibly delegated judicial power to the American Bar Association. The Court did not reach the issue of whether the doctrine of res judicata foreclosed litigation on these claims, leaving the determination to the district court. Feldman, 460 U.S. at 487, 490, 103 S.Ct. at 1317-18. The Court concluded that subject matter did not exist over claims that the District of Columbia Court of Appeals acted arbitrarily and capriciously in refusing to waive the bar rule in his case, and that the Court had discriminated by refusing to waive the rule in Feldman’s case even though it had waived the rule in other cases. Id. at 486-87, 103 S.Ct. at 1316-17.
. We agree with the Second and Fifth Circuits that the Feldman doctrine should apply to state judgments even though state court appeals are not final. See Hale v. Harney, 786 F.2d 688, 691 (5th Cir.1986) (“We hold no warrant to review even final judgments of state courts, let alone those which may never take final effect because they remain subject to revision in the state appellate system."); Pennzoil, 784 F.2d at 1142-43 (arguing that any other rule would encourage forum shopping and provoke antagonism between state and federal courts).
. Although on appeal, the parties did not raise this jurisdictional issue, we note tangential references to it in conjunction with Younger abstention arguments made in moving papers filed in the district court. This concern over the propriety of federal court review of state judgments is also apparent in Leona McNair’s abstention arguments made on appeal, although not couched in jurisdictional terms.
In their Response to Defendant Superior Court’s Motion to Dismiss, the plaintiffs relied upon Miofsky v. Superior Court, 703 F.2d 332 (9th Cir.1983) for the proposition that federal courts may enjoin state court judgments if constitutional issues are raised in a § 1983 suit. However, this court decided Miofsky prior to the Supreme Court’s opinion in Feldman. We therefore did not consider whether Miofsky's constitutional challenges were inextricably intertwined with the state court’s decision. See Miofsky, 703 F.2d a t 334-35. Cases subsequent to Feldman make it clear that Feldman’s jurisdictional bar applies in the § 1983 context, as elsewhere. See e.g., Curry v. Baker, 802 F.2d 1302, 1310 n. 5 (11th Cir.1986) (federal plaintiff sought prohibited appellate review of state court decision; fact that she sought relief under section 1983 does not confer jurisdiction); Hale v. Harney, 786 F.2d 688, 691 (5th Cir.1986) ("[Ljiti-gants may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits.”); Pennzoil, 784 F.2d at 1144-45 (a § 1983 case); Robinson, 753 F.2d at 1471-72 (same); Doe v. Pringle, 550 F.2d at 599 (plaintiffs cannot invoke § 1983 to circumvent the requirement of seeking direct review in the United States Supreme Court); Lewis v. East Feliciana Parish School Board, 635 F.Supp. 296, 300 (M.D.La.1986) (same).
.We therefore need not decide whether the district court erred in dismissing this action on abstention grounds, whether the issuance of and pending enforcement of the state court’s judgment constitutes state action, or whether the California Superior Court is entitled to eleventh amendment immunity.
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:
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sc_respondent
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
AYRSHIRE COLLIERIES CORP. et al. v. UNITED STATES et al.
No. 25.
Argued November 12, 15, 1948.
Decided January 3, 1949.
Earl B. Wilkinson argued the cause for Ayrshire Collieries Corp. et al., appellants. With him on the brief was J. Alfred Moran.
Carson L. Taylor argued the cause for the Chicago, Milwaukee, St. Paul & Pacific Railroad Co., appellant. With him on the brief were A. N. Whitlock and M. L. Bluhm.
Daniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appel-lees. With him on the brief were Solicitor General Perl-man, Assistant Attorney General Bergson and Edward Dumbauld.
Erie J. Zoll, Jr. argued the cause for the Alton Railroad Co. et al., appellees. With him on the brief were A. E. Funk, Attorney General of Kentucky, M. B. Holifield, Assistant Attorney General, Charles W. Stadell and J. E. Marks. Richard F. Wood was of counsel for Belleville Fuels, Inc. et al., appellees.
Mr. Justice Douglas
delivered the opinion of the Court.
This is an appeal, 38 Stat. 219, 220, 28 U. S. C. §§ 45 and 47a, 43 Stat. 938, 28 U. S. C. § 345 (4), from a decree of a three-judge District Court, which dismissed as without merit two complaints seeking to set aside a rate order of the Interstate Commerce Commission.
Bituminous coal is produced in great quantities in Indiana, Illinois and western Kentucky. In each State there are producing areas that have long been grouped for rate-making purposes. These groups or districts are the Brazil-Clinton, the Linton-Sullivan, the Princeton-Ayrshire, and the Boonville in Indiana; the Northern Illinois, the Fulton-Peoria, the Springfield, the Belleville, and the Southern in Illinois; and the Western in Kentucky. Group rates have been established by the carriers so that all mines within each producing area are accorded the same rates to the same consuming destinations. The result is that comparative distances of the mines in one producing area from a particular consuming destination are commonly disregarded in fixing the group rate. But the Commission has long concluded that such a system of rate making for coal and other natural resources encourages competitive production and a more even development of an area.
The present litigation involves group rates for carload lots from the foregoing groups in Indiana, Illinois, and Kentucky to Rockford, Freeport, Dixon and other points in northern Illinois and to Beloit, Wisconsin.
The order under attack in this case resulted from two proceedings before the Commission which were heard and considered together on the same record. One was an investigation in which carriers proposed certain increases in rates for carload lots of bituminous coal from some of the Indiana groups to Beloit, Wisconsin, and from all of the Indiana groups to designated Illinois destinations. Like increases in the Illinois intrastate rates to the same Illinois destinations were also sought. These proposed increases have been suspended until disposition of the proceeding. The other proceeding was an investigation instituted by the Commission, on complaint, into the intrastate carload rates from the Illinois groups to the same Illinois destinations to determine whether they were discriminatory, preferential, and prejudicial against interstate commerce and in favor of intrastate commerce.
These proceedings are only a recent chapter in the problem of adjustment of the coal rates for this region.
The Illinois Commerce Commission ordered a reduction of the intrastate rates in 1930. This resulted in a reduction of certain interstate rates from Indiana and western Kentucky to Rockford and other northern Illinois points. The Interstate Commerce Commission refused to require an increase in intrastate rates to the important Illinois destinations involved here unless the rates from the Indiana groups to the same destinations were increased. Subsequently the Commission found that the rates from the Illinois, Indiana and western Kentucky groups to Beloit, Wisconsin, were in the main not unreasonable but that they were unduly prejudicial to Beloit and unduly preferential to Rockford, if they exceeded the rates from the same origins to Rockford by more than 25 cents. The Commission also found on further hearing that the rates from certain of the Illinois groups to Beloit, Wisconsin, were not unreasonable but that they were unduly prejudicial to Beloit and unduly preferential to Rockford to the extent that they exceeded the Rockford rates by more than 15 cents. The Commission allowed the carriers to increase the rates to Rockford or to reduce the rates to Beloit, or both, in order to relate the rates to Beloit 15 cents over Rockford. But the intrastate rates to Rockford had been prescribed as a maximum by the Illinois Commission and therefore could not be increased. Also to increase the interstate rates without similar increases from the Illinois groups would be disruptive of the rate structure built on the group basis. Accordingly the rates to Beloit were reduced.
The carriers subsequently proposed increases in the rates from the Indiana groups and the Illinois groups to Rockford and other Illinois points and, with certain exceptions, from the Indiana groups to Beloit, Wisconsin. These increases conformed to the 15-cent relation between Rockford and Beloit but placed the rates (both interstate and intrastate) more nearly at the general level of interstate rates in that territory.
One other fact must be mentioned if the present posture of this rate problem is to be understood. After the Illinois intrastate rates were reduced in 1930 and after the carriers’ unsuccessful effort to have the earlier ones reestablished, the Milwaukee road proposed to reduce its single-line rates from mines in the Brazil and Linton groups which it serves to Rockford, Freeport and other intermediate Illinois points by the amount of the Illinois intrastate reduction. The Commission ordered the proposed rate to be cancelled. The Court affirmed a decree of a District Court which permanently enjoined the order of the Commission. United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499.
Since that time the rates of the Milwaukee from origins on its line in the Brazil and Linton groups to Rockford and other intermediate points in Illinois have been lower than the contemporaneous rates of carriers serving other origins in these respective groups to the same destinations, with the exception of the Illinois Central which in 1936 published rates from the Linton group to Rockford and other intermediate Illinois points on its lines on the same basis as the Milwaukee’s single-line rates.
The Milwaukee and the Illinois Central serve only a part of the mines in the Brazil and Linton groups. But they carry coal from other mines in those groups even though their lines do not reach them, since they are either connecting carriers of lines that do or destination carriers. They are therefore parties to many joint rates. But the joint rates do not reflect reductions which the Milwaukee and Illinois Central made in their single-line rates. And the rate increases proposed, and suspended by the Commission on the present proceedings, continued that previous relationship. Moreover the proposed dual basis of rates to Rockford and other Illinois destinations reached by the Milwaukee was proposed to be extended to Beloit, which previously had enjoyed the same rates from all the mines in the Brazil and Linton groups.
As we have noted, the new proposed rates respected the 15-cent differential of Beloit over Rockford. The result was a substantial increase in the joint-line rates from the Brazil and Linton groups to Beloit as well as to Rockford. But Milwaukee’s single-line rates were increased 15 cents to Rockford and none to Beloit. The result would be to accord to mines in the Brazil and Linton groups that were on the Milwaukee lines rates lower to Beloit by 17 and 12 cents, respectively, than accorded the other mines in the two groups. Furthermore the new proposed rates would establish a dual basis of rates to Beloit from the Princeton group as well.
The Commission disapproved the dual basis of rates. It considered what would be the fair and reasonable rate relations as between the respective origins in the several groups and as between the groups themselves. It found that present and proposed rates of the Milwaukee and Illinois Central from Indiana to the northern Illinois destinations would result in unjust discrimination as between shippers and receivers of coal and undue preference and prejudice as between the origins in the Brazil and Linton groups and as between the respective Indiana groups. It made the same findings as respects the Milwaukee’s proposed rates from the Brazil, Linton and Princeton groups to Beloit; and in that connection it also found that those rates would result in undue preference and privilege as between the Indiana groups on the one hand and the Illinois groups on the other. The Commission went on to specify rates which it approved. It ruled that the proposed rates would be unreasonable to the extent that they were above the approved rates. 263 I. C. C. 179.
We agree with the District Court that the complaints must be dismissed.
First. It is contended that the Commission in this proceeding had authority to determine the lawfulness only of the proposed rates, not of the present rates.
This proceeding is an investigation and suspension proceeding under § 15 (7) of the Interstate Commerce Act, 44 Stat. 1447, 49 Ú. S. C. § 15 (7). That section, which gives the Commission broad authority upon complaint or its own initiative to investigate and determine the lawfulness of any new rate, provides that "after full hearing, whether completed before or after the rate . . . goes into effect, the commission may make such order with reference thereto as would be proper in a proceeding initiated after it had become effective.”
The power of the Commission to deal with the situation as if the proposed new rates had become effective is necessarily a comprehensive one. It seems too plain for argument that such broad authority is ample for the modification of either proposed or existing rates or both. The power granted the Commission under § 15 (1) to deal with rate schedules already effective supports that view. For once the Commission finds the rate to be unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial or otherwise unlawful, the Commission is granted the power under § 15 (1) to determine and prescribe the just and reasonable rate. The Commission is not bound either to approve or disapprove in toto the new rates that are proposed. It can modify the proposal in any respect and require that the proposed rates as modified or wholly different rates be substituted for the present ones. That has been the view of the Commission since the beginning; and we think it is the correct one.
The same result obtains as respects the Milwaukee’s single-line rates from origins on its lines in the Brazil and Linton groups to Beloit, Wisconsin. The Milwaukee had not proposed any change in those rates. But those rates had been republished in the proposed schedules. They were among the rates suspended by the Commission. And the Commission’s order of investigation cited the Milwaukee tariff that contains those rates. Hence the Commission sought to bring them into the investigation and gave Milwaukee all the notice to which it was entitled. That the Commission had authority to include them seems clear to us. Even though we assume they are not “new” rates within the meaning of § 15 (7), they are rates “demanded, charged, or collected” within the meaning of § 15 (1).
Second. Section 2 of the Act makes it unlawful for a carrier to receive from one person a greater or less compensation for transporting property than it receives from another for doing a “like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.” It is pointed out that the purpose of this section is to enforce equality between shippers of like commodities over the same line or haul for the same distance and between the same points. This requirement, it is argued, has not been met in the present case since there is no finding that any of the coal from any origin point to any destination was being charged a higher rate than other coal from the same origin point to the same destination moving over the same line under substantially similar circumstances and conditions. The contention would be well taken if the Commission was not warranted in treating all places within a particular group or district as one origin point. Whether or not the Commission was warranted in doing so, depends primarily on the legality of its action in gathering together various origin points into one rate group for rate-making purposes.
As we have noted that has been an historic method of building coal rate structures. The Commission followed that method in this case because in its opinion such a rate structure was necessary to afford consumers, coal operators, and carriers a fair opportunity to compete in the purchase, sale and transportation of coal from the mines in the various groups or districts to the destinations in question. The Commission’s power so to act is not challenged here. Yet once the legality of the grouping of mines for rate purposes is accepted, the result is clear. For the protection of one shipper against unjust discrimination in favor of another within the same group is as clearly within the purpose of § 2 as the protection of one factory against unjust discrimination in favor of another in the same community.
The Milwaukee and Illinois Central were granting more favorable rates to some origins than to others in the same groups or districts. Their single-line rates from mines on their own lines were much lower than joint-line rates from other mines in the same group to the same destinations. The latter are rates published by other carriers and in which Milwaukee and Illinois Central join. Milwaukee and Illinois Central therefore are parties to an arrangement which results in some mines getting lower rates than other mines in the same group on shipments to the same destinations.
The question remains whether that preferential treatment of shippers at some origins was an unjust discrimination within the meaning of § 2.
The single-line rates of Milwaukee and Illinois Central from the Linton group to northern Illinois destinations were 12 cents lower than the joint-line rates to the same points from other mines in the Linton group. The like differential as respects the Brazil group was 17 cents. The proposed schedules continued that dual basis of rates and extended it to Beloit, Wisconsin. The Commission made what seems to us a permissible inference, that rates favorable to the mines on the single-rate routes played an important part in getting the great bulk of the tonnage from the roads having the higher joint rates. Thus Milwaukee served only 4 of the 30 mines in the Brazil group and only 9 of the 31 in the Linton group. But in what the Commission called a representative period, Milwaukee handled under its single-line rates over 95 per cent of the tonnage moving from Brazil to Rockford and over 78 per cent of that from Linton to Rockford. The Commission concluded that the maintenance of the dual basis of rates therefore had an important bearing on the future opportunities of shippers within the respective groups to market their coal in the destination territory. It found that there was severe competition in marketing coal in this territory and that a differentially related and finely balanced rate structure on the coal was necessary in order to meet the needs of the consuming public, the mine operators, and the carriers. For, in general, all of the mines in these groups produce coal of the same quality and grade. A difference of a few cents per ton in the transportation charge is normally sufficient to divert a coal contract from one mine to another. Yet the Commission found that the transportation conditions over the single-line routes do not differ materially from those over the joint-line routes to the same destinations from other mines in the same group; that there is no important difference in the average distances over those respective routes.
The latter findings, especially the one respecting the similarity of transportation conditions, are severely challenged as being without any support in the evidence. These findings, when judged by the classic examples of unjust discrimination between shippers, leave much to be desired. But we think they are adequate in this case. They reflect an intimate acquaintance by the Commission with the grouping of mines for rate-making purposes. See 263 I. C. C., p. 196. The groups are themselves designed to equalize competitive opportunities. The location of the mines, their distances from destination territory, the transportation conditions over the lines that serve the various origins within a group — these are all factors which bear on the determination of what mines shall be pulled together into one group. The Commission can draw from its long experience with these groupings to determine whether any variables in transportation conditions warrant a difference of rates as between mines within one group to a common destination. Or to state it otherwise, the attack here could not succeed unless it were on the respective groupings themselves. The appellants, of course, claim the right to initiate rates within the zone of reasonableness. See United States v. Chicago, M., St. P. & P. R. Co., supra. But the Commission holds that when that power is used to establish a dual basis of rates for this coal mining region, it defeats the system of grouping by unjustly discriminating against some shippers and in favor of others in the same group. The Commission’s conclusion that only by the establishment and maintenance of a single-rate basis can that unjust discrimination be avoided is an informed judgment based on a complex of many factors. It cannot be successfully challenged on this record unless the whole system of rate making on a group basis is undermined. But no such major project is undertaken.
What we have just said also disposes of the attack which is made on the findings and conclusion of the Commission that the present and proposed system of dual rates creates an undue preference and prejudice as between the origins in the Brazil and Linton groups in violation of §3(1) of the Act.
Third. The Commission found that the differentials maintained by the Milwaukee and Illinois Central as between certain of the Indiana groups constituted an undue preference and prejudice in violation of §3(1) of the Act.
The Commission found that the differential, Linton over Brazil, should be 10 cents. This is the standard differential, in effect generally to the northwest. It found that the standard differential, Princeton over Linton, was 7 cents. Milwaukee's differential in the former would be 22 cents; and the differential of the Milwaukee and Illinois Central in the latter would be 19 cents. The main attack of appellants on this phase of the case is the Commission’s conclusion that these differentials are greater than those warranted by the/respective differences in distances. Facts are adduced to show that they fairly reflect differences in distances.
But the Commission made plain that in considering the whole problem of rate relations presented by this case it did not rely strictly upon distance. Distance was a factor but it was not controlling. The Commission deemed its task to be the creation of a rate structure that would afford a fair opportunity to compete in the purchase, sale and transportation of the coal from the various mines to the destinations in question.
The propriety of that action of the Commission is determinative of another phase of the case as well. It goes to the heart of appellants’ objections to the differentials prescribed by the Commission as fair and reasonable as between the Indiana groups and the Illinois groups.
The Commission approved rates from the Indiana groups to twelve Illinois destinations which averaged $1.95 from Brazil, $2.05 from Linton, and $2.12 from Princeton-Boonville. These rates, the Commission found, compared favorably with the proposed rates to the same destinations from the Illinois groups, apart from exceptions not now material.
The chief problem of the Commission in this case was to provide a rate structure which would afford fair and reasonable relations of rates to northern Illinois destinations, both as between the respective origin groups and as between Indiana groups and Illinois groups. There had been historically no fixed relation either between the former or the latter. And the appearance of a dual basis of rates greatly distorted the picture. The Commission did in this case what the Court pointed out in United, States v. Chicago, M., St. P. & P. R. Co., supra, at 510, it had not done there, viz, it adjudged the fairness of the relation subsisting between Illinois and Indiana rates.
Appellants however contend that what the Commission did was wholly arbitrary. They point to instances where the rate from an Indiana group is more than the rate from an Illinois group even though the haul is shorter. They say that what the Commission did was to adjust the rates not to compensate for the transportation service rendered but to favor Illinois groups over Indiana groups. They give illustration after illustration of the inconsistencies between the specific rates, assuming, as the Commission found, that the transportation conditions which were involved were the same. From that argument appellants seek to make two points — (1) that the rates approved by the Commission do not reflect group differentials designed to eliminate discrimination and preference and (2) that, even though they do, individual rates are established that are wholly arbitrary in violation of the principle that each destination is entitled to a reasonable rate.
We cannot deny the Commission authority to use averages as a measure of the relationship between the rates of the Indiana groups on the one hand and the Illinois groups
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_authoritydecision
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
MINER et al., JUDGES, U. S. DISTRICT COURT, v. ATLASS.
No. 156.
Argued March 3, 1960.
Decided June 20, 1960.
Harold A. Liebenson argued the cause for petitioners. With him on the brief were Edward G.Raszus and John E. Harris.
Edward B. Hayes argued the cause and filed a brief for respondent.
Mr. Justice Harlan
delivered the opinion of the Court.
Certiorari was granted in this case, 361 U. S. 807, to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, was invalid for want of authority in the District Court to promulgate it.
The issue arose in the following manner: The respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants,, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R. S. §§ 863-865, the de bene esse statute. After argument, petitioner Miner, D. J., granted the claimants’ motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 265 F. 2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals’ conclusion was correct, and we affirm its judgment.
Counsel for the claimants, representing the petitioners here, undertake to support the discovery-deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court’s General Admiralty Rules impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court’s Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn.
The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S. S. Corp., 184 F. 2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes is not entirely clear. Compare Standard Steamship Co. v. United States, 126 F. Supp. 583, with Darling’s Estate v. Atlantic Contracting Corp., 150 F. Supp. 578, 579; 1950 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F. 2d, at 771, n. 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that “[a]n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery.” 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. Cary v. Curtis, 3 How. 236, 245.
Neither can we find in this Court’s Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not of its own force provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81 (a)(1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, 307 U. S. 653. Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively. However, the remainder of the Civil Rules in Part V, dealing with “Depositions and Discovery,” including Rule 26, the basic authority for discovery-deposition practice (see note 1, ante), was not adopted. We cannot of course regard this significant omission as inadvertent, cf. 76 A. B. A. Ann. Rep. 565-566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules.
However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, “Refusal to Make Discovery: Consequences.” That rule details the procedures which are to be followed if “a party or other deponent refuses to answer any question propounded upon oral examination . . . .” It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery-deposition practice existed or was to be followed in admiralty, for the reason that “[i]t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C would have given a suitor in admiralty a method of enforcing a right that did not exist.” Brown v. Isthmian S. S. Corp., 79 F. Supp. 701, 702 (D. C. E. D. Pa.). In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, 1949 A. M. C. 744 (D. C. S. D. N. Y.); Galperin v. United States, 1949 A. M. C. 1907 (D. C. E. D. N. Y.); The Ballantrae, 1949 A. M. C. 1999 (D. C. N. J.).
The dilemma thus suggested — either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included — is more seeming than real. The reference to “discovery” in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3, ante, and we think it should so be taken. As to the reference to “oral examination,” we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, 87 F. Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2, ante). By this construction, both actions of this Court— the adoption of Civil Rule 37 and the omission of Civil Rule 26 — are given harmonious effect.
Petitioners’ third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1, ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, 95 F. Supp. 790 (D. C. S. D. N. Y.); Application of A. Pellegrino & Son, 11 F. R. D. 209 (D. C. S. D. N. Y.); cf. Republic of France v. Belships Co., Ltd., 91 F. Supp. 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., 20 F. R. D. 356 (D. C. Md.). Rule 44, entitled “Right of trial courts to make rules of practice,” provides:
“In suits in admiralty in all cases not provided for by these rules or by statute, the district courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.” (Emphasis added.)
We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the “practice” of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Constr. Co. v. Standard Dredging Co., 40 F. 2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules and therefore that in this respect local Rule 32 falls within the proviso.
As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26 (a) throughout courts of admiralty. It may be, see 76 A. B. A. Ann. Rep. 565-566, that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R. S. § 913, although it does now, 28 U. S. C. § 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26 (d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty, cf. note 6, ante. But for whatever reason, no action was taken.
It is of course true that the failure to adopt Civil Rule 26 implies no more than that this Court did not wish to impose the practice on the District Courts, and does not necessarily bespeak an intention to foreclose each District Court from exercising a “local option” under Rule 44. We do not deny the logic of this contention; neither do we hold that whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44. Unlike many state practice statutes, this Court’s rules of admiralty practice for the District Courts are not comprehensive codes regulating every detail of practice, and we would be slow to hold that the interstices may not be the subject of appropriate local regulation. For example, rules fixing the time for doing certain acts are of the essence of orderly procedure. So long as the time set be not unreasonable, it is less important what the limit be than that there be a rule whereby some timetable may be known to the profession. Thus, the failure of the General Admiralty Rules to prescribe a time within which motions for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 232 F. 2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liability for but a portion of that sum, may be required to suffer a judgment for the remainder prior to trial on the contested portion, and there is no compelling reason why that lack should be held to prevent a District Court from supplying an answer by local rule. See Galveston Dry Dock & Constr. Co. v. Standard Dredging Co., supra.
We deal here only with the procedure before us, and our decision is based on its particular nature and history. Discovery by deposition is at once more weighty and more complex a matter than either of the examples just discussed or others that might come to mind. Its introduction into federal procedure was one of the major achievements of the Civil Rules, and has been described by this Court as “one of the most significant innovations” of the rules. Hickman v. Taylor, 329 U. S. 495, 500. Moreover, the choice of procedures adopted to govern various specific problems arising under the system was in some instances hardly less significant than the initial decision to have such a system. It should be obvious that we are not here dealing either with a bare choice between an affirmative or a negative answer to a narrow question, or even less with the necessary choice of a rule to deal with a problem which must have an answer, but need not have any particular one. Rather, the matter is one which, though concededly “procedural,” may be of as great importance to litigants as many a “substantive” doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed.
The problem then is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rule-making powers of the Court, see 28 U. S. C. § 331 (advisory function of Judicial Conference), 28 U. S. C. § 2073 (prior report of proposed rule to Congress), designed to -insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords. Having already concluded that the discovery-deposition procedure is not authorized by the General Admiralty Rules themselves, we should hesitate to construe General Rule 44 as permitting a change so basic as this to be effectuated through the local rule-making power, especially when that course was never reported to Congress as would now be required under 28 U. S. C. § 2073.
We are strongly reinforced in our conclusion by the post-1939 history of the question of adoption of discovery-deposition rules in the General Admiralty Rules. In the 1948 revision of the Judicial Code this Court was given the power to supersede statutes, which it lacked in 1939. In 1951 a joint committee representing several leading bar associations proposed the adoption of a rule permitting the taking of the deposition of a party for discovery purposes. See 76 A. B. A. Ann. Rep. 181; Maritime Law Assn., Doc. No. 348 (Sept. 1951). No action was taken. In 1953 it was recommended that Rule 26 (a) be made applicable to proceedings in admiralty, with two minor modifications; this would of course have permitted discovery by deposition of witnesses as well as parties. Maritime Law Assn., Doc. No. 369 (Apr. 1953). Again no action was taken. We do not think this failure to enact the proposed amendments can be explained away by suggesting that the widespread local adoption of rules similar to the local rule now before us was thought to render amendment of the General Rules unnecessary, for local rules, by virtue of the inability of the District Courts to supersede statutes, cannot deal with the matter of the taking and use of depositions as an integrated whole. See Mercado v. United States, 184 F. 2d 24 (C. A. 2d Cir.).
It hardly need be added that our decision here in no way implies any view as to the desirability or undesirability of having a discovery-deposition procedure in admiralty cases. Those who advise the Court with respect to the exercise of its rule-making powers — more particularly of course the Judicial Conference of the United States (28 U. S. C. § 331) and the newly created Advisory Committee on the General Admiralty Rules, which it is to be hoped will give the matter their early attention — are left wholly free to approach the question of amendment of the discovery provisions of the rules in the light of whatever considerations seem relevant to them, including of course the experience gained by the District Courts which have had rules similar to the Local Rule here challenged. Nor would anything we have said prevent those bodies from recommending that the matter of discovery-depositions be left to local rule making. All we decide in the existing posture of affairs is that the matter of discovery-depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rule-making power under General Rule 44.
Affirmed.
Local Rule 32 provides that the “taking and use of depositions of parties and witnesses shall be governed by the Federal Rules of Civil Procedure except as otherwise provided by statute and except that their use” is limited as set forth in the rule. Rule 26 (a) of the Civil Rules permits the taking of “the testimony of any person, including a party, by deposition upon oral examination ... for the purpose of discovery or for use as evidence in the action or for both purposes,” subject to limitations as to use of such depositions set forth in Rule 26 (d).
This statute, as amended, 31 Stat. 182, is now applicable only to proceedings in admiralty. See note preceding 28 U. S. C. § 1781. Section 863 permits the taking of the deposition de bene esse of a witness in a pending action, in the following circumstances only: “. . . when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. ...”
The deposition is admissible at trial only in the event of the deponent’s death, absence from the country, presence at a distance greater than 100 miles from the place of trial, or inability to travel and appear by reason of age, ill health, or imprisonment. R. S. § 865.
Civil Rule 33, adopted as Admiralty Rule 31, is entitled, “Interrogatories to Parties”; Civil Rule 34 (Admiralty Rule 32) relates to “Discovery and Production of Documents and Things for Inspection, Copying, or Photographing”; Civil Rule 35 (Admiralty Rule 32A) authorizes “Physical and Mental Examination of Persons”; Civil Rule 36 (Admiralty Rule 32B) governs “Admission of Facts and of Genuineness of Documents”; Civil Rule 37 (Admiralty Rule 32C) deals with “Refusal to Make Discovery: Consequences.”
For reasons stated, ante, pp. 643-644, we cannot regard the omission as the result of a so well-settled practice of using depositions for discovery in admiralty that codification was thought unnecessary. See Mulligan v. United States, 87 F. Supp. 79, 80.
Apart from the de bene esse procedure, admiralty practice traditionally utilized the Commission Dedimus Potestatum, the Deposition In Perpetuara Rei Memoriae, and Letters Rogatory. The statutory authority for these procedures, R. S. §§ 866-870, 875, was not repealed until the 1948 codification of the Judicial Code, some years after the 1939 amendments to the Admiralty Rules. For a discussion of them, see 3 Benedict, Admiralty, §§ 397-401.
Judge Rifkind’s rejection of the Brown decision has been followed by several district judges. See Kelleher v. United States, 88 F. Supp. 139 (D. C. S. D. N. Y.); cf. Standard Steamship Co. v. United States, supra (D. C. Del.); Gulf Oil Corp. v. Alcoa S. S. Co., 1949 A. M. C. 1965 (D. C. S. D. N. Y.).
We do not find such inconsistency in Admiralty Rule 46, requiring that “the testimony of witnesses ... be taken orally in open court, except as otherwise provided by statute, or agreement of parties.” We regard that provision as having been promulgated with reference to the trial and not the discovery stage of the lawsuit. See Republic of France v. Belships Co., Ltd,., supra.
For much the same reason, we do not deem the challenged rule inconsistent with the de bene esse statute, note 2, ante. That statute is concerned with the taking of depositions for use at trial, and not for discovery. The limitations on the taking of a deposition are evidently the product of the limitations on use. A discovery-deposition not meeting the conditions of .the statute may not be admitted into evidence at the trial, Mercado v. United States, 184 F. 2d 24 (C. A. 2d Cir.), but where a deposition is not sought to be taken for use at trial, we see no reason to regard the statute as a bar. See Republic of France v. Belships Co., Ltd., supra.
The Bar Association Report, in referring to “Chief Justice Stone,” is in error. The Chief Justice in 1939 was Charles Evans Hughes.
R. S. § 913, the predecessor source of this Court’s authority to promulgate admiralty rules, in effect when Rule 44 was adopted, did not, as does 28 U. S. C. § 2073, require the prior reporting of such rules to Congress.
See, e. g., Southern District of New York, Admiralty Rule 32; Southern and Northern Districts of Florida, Admiralty Rule 24; Northern District of California, Admiralty Rule 13. See also Darling’s Estate v. Atlantic Contracting Corp., supra (D. C. E. D. Va.); Brown v. Isthmian S. S. Corp., supra (D. C. E. D. Pa.).
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONNETT et al. v. CITY OF JERSEYVILLE.
No. 6923.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1940.
Rehearing Denied March 7,1940.
Emil J. Verlie, J. F. Schlafly, Jr., and C. Dana Eastman, all of Alton', 111., for appellant.
W. J. Chapman, of Alton, 111., R. Allan Stephens, of Springfield, 111., and Isaac D. Snedeker, of Jerseyville, 111., for appellees.
Before EVANS, SPARKS, and TREANOR, Circuit Judges.
TREANOR, Circuit Judge.
Defendant-appellant is a municipal corporation of the state of Illinois and several years ago became the owner of its water system by virtue of an Illinois statute enacted in 1899. The legislative act authorized a city to acquire a water system and to pay for the same by issuance of certificates of indebtedness. The city was authorized to mortgage the water system to secure payment of the water certificates and to include in the mortgage “such provisions and conditions as are reasonably necessary to fully secure the payment of said water certificates.” The defendant passed appropriate ordinances which included a schedule of rates to be charged and which approved the issuance of a form of a mortgage to secure certificates of indebtedness. The mortgage provided that the rates fixed by ordinance “will, if it becomes necessary to do so, be increased * * * The certificates of indebtedness secured by the mortgage were issued by-defendant.
Defendant defaulted in payment of principal and interest of the certificates of indebtedness and in 1924 foreclosure suit was instituted in the District Court by the mortgage trustee. During the pendency of the foreclosure suit a receiver was appointed to operate the water works and the receiver has continued to operate the same. In 1929 a decree of foreclosure was entered' and in 1931 the property was offered for-sale pursuant to the decree but no bids, were received.
In 1931 the Illinois legislature amended the. act of 1899. One of the amendatoryprovisions contained the requirement that “rates charged for water by such city * * shall be sufficient at all times to pay the-cost of operation, maintenance, provide an adequate depreciation fund and pay the principal of and interest upon all revenue bonds issued under this act.” The amendatory act also authorized any holder of a bond or bonds, “either [to] in law or in equity, by suit, action, mandamus or other proceeding, [to] enforce and compel performance of all duties required by this Act, including the making and collecting of sufficient water rates for that purpose and the application of income and revenue thereof.”
In 1936 the mortgage trustee filed a supplemental bill in the original foreclosure suit praying that the rates charged for water for private and public use be increased to produce income sufficient to pay the cost of operation and maintenance, provide an adequate depreciation fund and pay the amount found due in the foreclosure decree. This supplemental bill based the right of the trustee to such relief on Section 4 of the Act of 1899 and the provisions of the mortgage as affected by the amendatory act of 1931.
The District Court sustained a motion to dismiss the supplemental bill; and upon appeal to this Court the judgment of dismissal by the District Court was reversed. This Court held that Section 4 of the Act of 1899 authorized the city to obligate itself in the mortgage to increase rates, if it should become necessary to do so in order to pay the certificates. It was also held that the amendatory act of 1931 was applicable and gave the plaintiff a right to utilize the remedies provided therein.
After our mandate issued the District Court required the defendant to answer and the defendant’s answer set up that the District Court had no power or jurisdiction to increase rates for the reason that the fixing of public utility rates is a legislative and not a judicial act. The District Court sustained the motion of the plaintiffs to strike out the foregoing matter.
The District Court thereupon heard evidence and made findings of fact and conclusions of law. The court found that the plaintiffs were entitled to an increase in the water rates of the consumers, both public and private, in such amounts as would be “designed to produce operating revenues that will permit and enable- the payment of necessary operation and maintenance expenses; and maintenance of adequate reserves for depreciation; the payment within a reasonable number of years, of the principal amount found due by said decree, to-wit: $233,971.92 together with interest thereon at the rate of 5% per annum from the date hereof; and the payment, within a reasonable number of years, of the interest now accrued and unpaid on said principal amount.”
A supplemental decree was thereafter entered by the District Court fixing specific increased rates for all types of service and assessing the cost of proceeding against defendant. The decree did not order the municipality of Jerseyville to determine and put into effect rates which would be adequate to take care of the cost of operation, maintenance and depreciation and to pay the principal and interest obligations, but the decree required the receiver to charge the rates fixed by the court without any action by the city council.
The only point urged on appeal by defendant-appellant is that the District Court, by reason of limitations on its power as a federal court, did not possess the power to fix rates as it did and order the same to be put into effect by its receiver. But the plaintiffs raise the question of the propriety of any consideration of the issue of jurisdiction for the reason, as urged by plaintiffs, that “the holding of this court in 96 F.2d 392 that the District Court had jurisdiction to grant the relief prayed and the denial of the city’s petition for rehearing, which urged the ‘legislative power argument’ is now the law of the case.”
In our former decision we held that the combined effect of the Illinois act of 1899, of the ordinances passed in conformity thereto, of the provision in the mortgage deed binding the city to increase rates as required, and of the amendatory act of 1931 was to authorize judicial action to compel the .defendant municipality to increase rates to the extent necessary to provide for the cost of operation, maintenance and depreciation, and to pay the principal and interest obligation under the certificates of indebtedness. No point is made on this appeal as against the foregoing. The precise questions presented now are (1) whether the District Court, as a federal court, has jurisdiction under the federal law to prescribe the rates which it did and order the same to be put in effect by its receiver, and (2) whether defendant-appellant is prevented from raising that question by the rule of the law of the case.
The District Court construed the language of the closing paragraph of our previous opinion (supra, page 1017) to hold that it had jurisdiction to conduct a hearing cmd determine the amount of increase in water rates. The question of jurisdiction was not directly raised in the appeal proper, but was advanced in the petition for rehearing. It is squarely raised on this appeal, and regardless of the effect of our previous decision we are of the opinion that “when the jurisdiction of the court as a federal court is called in question, liberality of practice should be indulged, to the end that the question may be indubitably heard and determined.”
The doctrine of the “law of the case,” when applicable, does not carry the same consequences as the rule of res judicata. The Supreme Court in Southern Railway Company v. Clift stated that one, the law of the case, directs discretion, the other supersedes it and compels 'judgment. And the Supreme Court further amplified its meaning by the statement that “in one it is a question of power in the other of submission.” In Messinger v. Anderson, the Supreme Court stated that “in the absence of statute the phrase, ‘law of the case/ as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” The Supreme Court, however, has pointed out in Hartford Life Ins. Co. v. Blincoe that “omissions do not constitute a part of a decision and become the law of the case, nor does a contention of counsel not responded to.”
The expressions of the Supreme Court and of inferior federal courts leave no question that federal courts do not apply the doctrine of “the law of the case” as a rule o'f law limiting the power of the court to reopen what has been decided but rather as an expression of “the practice of courts generally to refuse to reopen what has been decided * * *.” Also, federal courts recognize that the law of the case does not include determination of all questions which were within the issues of the case and which, therefore, might have been decided.
In view of the foregoing we conclude that defendant-appellant is entitled to have us consider the question of the District Court’s jurisdiction, under the United States Constitution and federal laws, of the subject matter presented by the supplemental bill of the trustee and intervening petition of the certificate holders’ protective committee praying that the water rates for both public and private uses'be increased.
The propositions relied upon by defendant are (1) that the fixing of public utility rates for public and private use of water constitutes an exercise of legislative power and that the exercise of such power is precluded by the first and third articles of the United States Constitution; and (2) that the Johnson Act prohibited the District Court from increasing the water rates in this case. It will be unnecessary to consider the latter.
Undoubtedly federal District Courts do not have jurisdiction to exercise the ordinary rate making power which the legislatures of various states have conferred upon ratemaking bodies. The Supreme Court has declared many times in substance that “District Courts * * * are without authority to prescribe rates, both because that is a function reserved to the state, and because it is not one within the judicial power conferred upon them by the Constitution.”
But plaintiffs insist that the defendant is in error in treating the action of the District Court as presenting “a case of ‘fixing rates in the ordinary sense of the term.’ ” Plaintiffs state their position as follows: “This is a case of enforcing a contract obligation; of increasing rates within the limits of standards previously fixed by the legislative power; of increasing rates in accordance with legislative commands; and of a Court instructing its receiver as to the rates to be charged by such receiver. The argument that the exercise by the District Court of these distinctly judicial functions constitutes an exercise of legislative power by the Court is wholly without merit.”
To appraise the merits of plaintiffs’ contention we must consider the effect of our previous decision. It necessarily follows from that decision that the defendant-municipality is under a legal duty to adopt a schedule of rates which will produce sufficient income to pay the cost of operation and maintenance of its water system and to provide an adequate depreciation fund and to pay the principal of and interest upon its indebtedness to . plaintiffs. The foregoing duty was imposed by the act of 1899 and by the terms of the mortgage which was executed' under authority of said act. Also we held that as a result of the amendatory act of 1931 the holders of the water certificates had a right to enforce and compel performance of • the duty of the making and collecting of sufficient water rates for the foregoing purposes “either in law or in equity, by suit, action, mandamus or other proceeding.” The foregoing language is broad enough in meaning to include the proceeding below in which the District Court determined a schedule of rates and ordered the receiver to put them into effect. Consequently, the District Court properly proceeded unless, as urged by defendant, the District Court was without jurisdiction to take such action by reason of limitations imposed by the Constitution of the United States. And, as indicated above, this presents the question of whether or not what the court did constituted the legislative act of rate making within the decisions of the Supreme Court.
Under the law of Illinois, as stated in Springfield Gas & Electric Co. v. City of Springfield, a municipally owned utility is owned and operated by the municipality “in its capacity of a private corporation, and not in the exercise of its power of local sovereignty.” But the Supreme Court of Illinois pointed out that the legislature had delegated to the municipalities the power of regulatory control of municipally owned plants in the same sense that it had delegated to the Public Utilities Commission the right to regulate and. fix charges for privately owned public utilities. The fact that a municipality regulates and fixes the rates of the utility which it owns does not change the legal theory that the municipality is a regulatory instrumentality of the state. The Illinois Supreme Court also stated that “municipally owned public utilities are not exempt from * * * the making of rates and charges that are reasonable and just and uniform for the same amount and character of service;” and the court further stated that “All their rates and charges fixed by ordinances or resolutions are subject to review by the courts to a like extent as the rates fixed by the Public Utilities Commission for public utilities privately owned, although the matter of review may be had under a different law and by a different remedy.”
We think it is clear from the discussion in the opinion of the Illinois Supreme Court that the governing body of the municipality, when fixing utility rates or charges, is performing a public function of the municipality and acting as a rate making body as distinguished from its private function as owner and operator of the utility. In this connection it is interesting to note the comment of the Supreme Court of the United States in the case of Springfield Gas & Electric Co. v. Springfield when it was reviewing the decision of the Supreme Court of Illinois above referred to.
“But the fact that the municipality owned the plant for which its council fixed the rate was supposed to disqualify its officers, at least when other plants were submitted to the judgment of strangers. But a city council has no such interest in the city’s electric plant as to make it incompetent to fix the rates. Whatever the value of the distinction between the private and public functions of the municipality, the duty of its governing board in this respect as we have said is public and narrowly fixed by the act.”
As indicated above, plaintiffs maintain that the action of the District Court in fixing rates was not legislative but judicial. In support of their contention they cite and rely upon Guardian Savings & Trust Co. v. Road Improvement District No. 7. The recital of facts in that case discloses that the legislature had authorized the creation of a road improvement district; that one legislative act had authorized the assessing of a benefits tax sufficient to pay the estimated cost of improvement and had made the tax a lien upon the land. After the assessment had been made by the district another legislative act confirmed the assessment of benefits. The tax assessed was sufficient to pay the entire estimated cost of the improvement and was to be paid in annual installments not to exceed 10% for any one year. The legislative act also provided that if any bond or coupon should not be paid within thirty days of its maturity it was the duty of the local chancery court to appoint a receiver to collect the taxes and pay what was due, and power was given to direct the receiver to foreclose the lien on the land. There was a default and the trustee for the bondholders brought suit in the Federal District Court. The District Court entered a decree for the plaintiff and directed the appointment of a receiver to collect the taxes theretofore levied to the extent necessary to pay the outstanding bonds and coupons. The Circuit Court of Appeals reversed the District Court and the Supreme Court reversed the Circuit Court of Appeals. We quote the following from the opinion of the Supreme Court: “The ground on which jurisdiction was denied by the Circuit Court of Appeals was that the power to levy and collect taxes was a legislative function of the state which could not be usurped by a federal court. But while that may be true as a general doctrine, it cannot apply when a state has authorized and confirmed an assessment and a mortgage of it as security for bonds that the public is invited to buy, and has provided in terms for a collection by a receiver appointed in equity if there should be a default. There is no longer any legislative act to be done, and there is no usurpation of powers in following the course provided by state law.”
In the foregoing case the amount to be paid by the property owner had been fixed by legislative action, either directly by the legislature or by the district under delegated power; and the amount of the assessed tax was mortgaged as security for the payment of the bonds. In a very real sense there was no longer any legislative act to be done and the action of the court through a receiver was not materially different from the action usually taken by receivers to collect claims when the source of payment is known and has been designated by law or by contract.
We understand from the record that a receiver has been operating the water system of Jerseyville for several years and has been collecting from the consumers the amounts due under the existing rates, that is, the amounts due as previously fixed and determined by legislative action. It would seem that the receiver has been doing for several years substantially what the Supreme Court in Guardian Savings & Trust Co. v. Road District, supra, held that the receiver could do in that case. In the Guardian Savings & Trust Co. opinion the Supreme Court stressed the fact that the state both had authorized and confirmed an assessment and a mortgage of it as security for bonds, and had provided, in case of default, for a collection by a receiver appointed in equity. In the instant case we think that it is accurate to say that the state has authorized and confirmed, through the action of the municipal council, the existing schedule of rates for water users and has authorized a mortgage of the income as security for the payment of the certificate indebtedness. Also, under our earlier decision, the state has authorized, and by the amendatory act of 1931 has imposed upon the City of Jerseyville the duty of making any increase in the rates which may be necessary to take care of all expenses incident to the operation and maintenance of the water system and to produce sufficient additional income to take care of the principal and interest of the certificate indebtedness. But as respects a schedule of increased rates, it seems that the characteristic rate making function remains to be exercised. Some person, or body, with authority from the State of Illinois to determine and promulgate water rates must act before it can be said that the state has authorized and approved a schedule of rates. Under the Illinois law the municipality of Jerseyville, acting through its council and by ordinance, is the sole rate making authority for the City of Jerseyville. And until the municipality acting through its council performs its public function of rate making and issues a new schedule of rates, it cannot be said that the legislative act of rate making has been performed.
It is true, as stated by plaintiffs, that the legislature of Illinois has fixed the standards which must serve as both guide for, and limit upon, the action of any agency which determines and promulgates new rates. The legislative standard, or guide, for the municipal council, however, does not differ in nature and purpose from the standard which the legislature of Illinois provides for the state rate making body. When the municipal council fixes increased rates, and by official action makes them legally effective, it has exercised the power delegated to it by the Illinois legislature and has completed the legislative process. The District Court applied the standards set by the Illinois legislature and, in the form of a judicial decree promulgated a schedule of water rates for the City of Jerseyville and directed its receiver to make them effective. As a matter of substance we cannot distinguish what the District Court did from what the municipal council of Jerseyville would have done if it had prepared and promulgated a new schedule of rates in accordance with the standards fixed by the legislature of Illinois. And in our opinion the District Court was acting legislatively in the same sense that any rate making body acts legislatively when it performs its function of rate making under delegated power and subject to standards fixed by the superior legislative body.
We conclude that under the decisions of the Supreme Court of the United States the District Court was without power to determine a schedule of water rates for the City of Jerseyville and by judicial decree make them effective.
It does not follow, however, from what we have said that the District Court was without jurisdiction to exercise its judicial powers in aid of the enforcement of the rights of the holders of certificates of indebtedness in accordance with the provisions of the amendatory act of 1931. We have already noted that under our previous decision the Municipality of Jerseyville was under a legal duty to charge such rates for water as should be required to pay the cost of operation, maintenance, provide an adequate depreciation fund and pay the principal of and interest upon the certificates of indebtedness; and we also held that the amendatory act of 1931 (SmithHurd Stats.Ill. c. 24, § 443) gave to the holders of these certificates the right to enforce and compel performance of such duty. We are of the opinion that the District Court has jurisdiction to give such relief. The language of the amendatory act must be construed to confer rights on interested persons and not merely to extend the jurisdiction of local courts. In Guardian Savings & Trust Co. v. Road District, supra, it was suggested that the chancery power which was being invoked in the federal court was confined to the state court named in the statute, and the Supreme Court disposed of this suggestion as follows: “But the decisions have done away with such a limitation and it was not relied upon by the Circuit Court of Appeals. * * * The state law is not merely an enlargement of the remedial powers of a local court as in Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763, it recognizes the inadequacy of the remedy at law and is an attempt to give to purchasers of bonds the assurance of adequate relief against shortcomings that experience has taught the business world to apprehend. We see no reason why it should not succeed. * * *”
We are satisfied that the District Court has jurisdiction to determine the amount of principal and interest due on the certificates and to enforce and compel defendant’s performance of its duties under the amendatory act by a decree which will require the defendant to adopt a schedule of rates which will produce sufficient income to pay the costs of operation, maintenance, provide an adequate depreciation fund and pay the interest upon the certificates of indebtedness and discharge the principal within a reasonable period of time.
The decree of the District Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
The decree is reversed.
Ill.Session Laws 1899, p. 104, Smith-Hurd Stats.Ill. e. 24, §§ 440 — 445.
Smith-Hurd Stats, c. 24, § 444.
Connett v. City of Jerseyville, 7 Cir., 96 F.2d 392, 400.
The opinion of this Court in Connett v. City of Jerseyville, supra, concluded as follows: “We think that appellants were entitled to an increase of water rates pursuant to the provisions of the trust deed, and that they were entitled to a hearing for the determination of the amount. The decree of the District Court is reversed and the cause is remanded with instructions to overrule appellee’s motions to dismiss the amended petitions and supplemental bill of complaint, and to require appellee to answer by a day fixed by the District Court.”
City and County of Denver v. Denver Tramway Corporation, 8 Cir., 23 F.2d 287.
260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283.
225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152.
255 U.S. 129, 136, 41 S.Ct. 276, 278, 65 L.Ed. 549.
Act May 14, 1934, Ch. 283, § 1, 48 Stat. 775, 28 U.S.C.A. § 41(1).
Central Kentucky Natural Gas Co. v. Railroad Comm. of Kentucky, 290 U.S. 264, 271, 54 S.Ct. 154, 157, 78 L.Ed. 307.
292 Ill. 236, 126 N.E. 739, 745, 18 A.L.R. 929.
257 U.S. 66, 42 S.Ct. 24, 25, 66 L.Ed. 131.
267 U.S. 1, 45 S.Ct. 201, 202, 69 L.Ed. 487.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_casetyp1_7-3-4
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to 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".
SUNKIST GROWERS, INC., a Corporation, and The Exchange Orange Products Company, a Corporation, Appellants, v. WINCKLER & SMITH CITRUS PRODUCTS CO., a Corporation, and Ronald Walker, Trustee, Appellees.
No. 15242.
United States Court of Appeals Ninth Circuit.
Sept. 30, 1960.
Ross C. Fisher, Herman F. Selvin, Los Angeles, Cal., Thomas C. Strachan, Jr., Frank F. Fowle, Melville C. Williams, Chicago, Ill. (Farrand, Fisher & Far-rand, Los Angeles, Cal., Loeb & Loeb, Los Angeles, Cal., Pope & Ballard, Chicago, Ill., of counsel), for appellants.
William C. Dixon, Los Angeles, Cal., Holmes Baldridge, Chicago, Ill. (Harry M. Irwin, Los Angeles, Cal., of counsel), for appellee.
Before STEPHENS, BARNES and MERRILL, Circuit Judges.
BARNES, Circuit Judge.
This is a private action for treble damages under the Sherman Act, 15 U.S.C.A, §§ 1-7, 15. Appellants are Sunkist Growers, Inc., a corporation (hereinafter referred to as Sunkist) and The Exchange Orange Products Company, a corporation (hereinafter referred to as Exchange Orange or EOP). Appellees are Winckler & Smith Citrus Products Co., a corporation and Ronald Walker, as trustee of Winckler & Smith (hereinafter referred to as Winckler or Trustee). The action was tried in the district court before a jury, which returned a verdict of $500,000. This was trebled to $1,500,000, and from that there was deducted the $2,500 originally paid in compromise by one-time defendant TreeSweet. There were added attorneys’ fees fixed at $195,-000, and costs. Timely appeal was filed in this Court. After argument, but before decision, one of the judges hearing this appeal died. It was thereupon set down for hearing a second time, was heard, and held pending the determination by the Supreme Court of Maryland and Virginia Milk Producers Ass’n v. United States, 1960, 862 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880, having to do with the antitrust exemptions of agricultural marketing cooperatives.
I
Parties
Sunkist Growers, Inc., a corporation, was sued in the district court originally under its former name, California Fruit Growers Exchange. It is and has been a nonprofit agricultural cooperative marketing association. The second defendant, The Exchange Orange Products Company, a corporation, was sued in the court below as The Exchange Orange Products Company. At all times it was a wholly owned subsidiary of Sunkist. Together with Sunkist and Exchange Orange, there was originally named as a defendant Exchange Lemon Products Company, a corporation, sued originally as Exchange Lemon Products Company, a nonprofit corporation (hereinafter sometimes referred to as ELP or Exchange Lemon).
On motion of plaintiff, Exchange Lemon was dismissed with prejudice as a defendant, and was subsequently named as a co-conspirator in plaintiff’s second amended complaint filed February 2, 1956, to conform to proof.
TreeSweet Products Company, a corporation (hereinafter referred to as Tree-Sweet) was an original defendant, but settled for $2,500, and was dismissed as a defendant. In the said second amended complaint, it was referred to as a co-conspirator.
E. A. Silzle Corporation, a corporation (hereinafter referred to as Silzle) was never a defendant but was named a co-conspirator in both plaintiffs’ first and second amended complaints.
Appellee Ronald Walker is trustee of the estate of Winckler & Smith Products Co. in those proceedings pending in the district court below for its reorganization under Chapter X of the Bankruptcy Laws, 11 U.S.C.A. § 501 et seq., being Number 538860-C of the records of said court. Mr. Walker was appointed March 26th, 1952 as such trustee, and by order made May 9, 1952 he was permitted to and did intervene in this case. Mr. Walker is sometimes referred to herein as appellee, Walker, Trustee, or as Inter-venor.
Thus on this appeal there are two appellants, Sunkist and EOP, and two ap-pellees, the Winckler corporation and the Trustee.
II
The Theory of the Case
Appellees allege in their first cause of action (Section 1 of the Sherman Act; 15 U.S.C.A. § 1), and appellants deny, that appellants have conspired and entered into contracts which had the purpose and effect of unreasonably restraining interstate commerce in canned California citrus fruit juice, particularly single strength orange juice. This was proved, say appellees, by “six acts.” These were:
(a) In the 1950-1951 canning season ELP processed 28,812 tons of oranges for EOP at cost, and without profit to ELP. Appellants admit this.
(b) During the same period, EOP processed 1,740 tons of lemons for ELP on the same basis. Appellants admit this.
(c) Sunkist and EOP agreed to establish and maintain the price of by-product oranges available to independent processors like appellees at a level making it impossible for processors like appellees to purchase oranges from EOP, or any other source, at a price or under any other arrangement enabling appellees and other processors to produce and sell canned natural orange juice and frozen concentrate juice at prices competitive with prices charged by appellants and their favored customers, TreeSweet and Silzle. Appellants deny these allegations.
(d) Under a contract effective July 23, 1951, between EOP and TreeSweet, Tree-Sweet received oranges from EOP, made single strength orange juice for EOP at cost and without profit to TreeSweet, and then bought the orange juice from EOP at Sunkist’s then published price for single strength orange juice, less certain discounts not available to other customers, including appellees. The purpose and effect of this contract allegedly was to enable TreeSweet to obtain orange juice at a cost which prevented appellees from competing with Sunkist or TreeSweet in the natural orange juice market. Appellants admit the contract and supplying the oranges; deny the balance.
(e) Under a contract effective June 26, 1951, between EOP and Silzle, EOP furnished oranges to Silzle at $22.50 per ton, which was lower than the price to appellees or other processors. The purpose and effect allegedly was to give Sil-zle oranges at a price with which appel-lees could not compete. Appellants admit the contract and furnishing the oranges; deny the purpose or effect.
(f) EOP refused appellees a Tree-Sweet or Silzle type contract in 1951. Appellants denied the refusal but admitted such a contract was not made.
Appellees allege that as a result of the above acts of appellants (listed in (a) to (f) above), and the monopoly control of Sunkist and Exchange Orange in 1951 over the amount and price of Valencia oranges available for processing, appel-lees were unable to process natural and frozen concentrate fruit juice in competition with Silzle, TreeSweet and Sunkist, which alleged facts eliminated ap-pellees as a competitor, and forced the filing of proceedings under Chapter X of the Bankruptcy Act. These allegations were added in the second amended complaint filed after the close of evidence. They were materially different from those in the original complaint. Appellants deny all these allegations.
Under the second cause of action (brought under § 2 of the Sherman Act; 15 U.S.C.A. § 2) it was charged that acts (a) to (f) above were done by appellants with monopoly control over citrus fruit markets in California and Arizona, and in so doing and in making such contracts, the parties named conspired to monopolize, and monopolized, single strength Valencia orange juice.
The second amended complaint additionally alleged contracts with independent processors Hyland-Stanford and Mission Dry, giving them first call on oranges and and processing to the exclusion of Independent Fruit Growers’ Association and Morgan Ward, its selling agent, and one of the appellees’ principal suppliers of by-product oranges.
Appellants plead five separate defenses:
First: The second amended complaint, the amended complaint, and the original complaint each failed to state a claim upon which relief could be granted.
Second: The applicable statute of limitations, Section 338(1) of the Code of Civil Procedure of California, bars all causes of action asserted in the second amended complaint and in the amended complaint.
Third: All causes of action alleged in the second amended complaint and the amended complaint are barred by the laches of appellees, in that appellees are barred by laches and estopped from relying upon any acts involving Silzle, as the Silzle contract was'disclosed to appellees on March 14, 1952, and appellees did not amend their complaint to include this contract until December 15, 1954, and such a long delay was prejudicial to appellants.
Fourth: Appellees are barred by lach-es and estopped from relying on the Hy-land-Stanford and Mission Dry contracts first referred to in the second amended complaint, as these contracts were disclosed to appellees on November 9, 1955, and appellees did not amend their complaint to refer to the Hyland-Stanford contract until January 31, 1956 (during the last few days of the trial) or to the Mission Dry contract until February 4, 1956 (after all the evidence was in), and such long delay was prejudicial to appellants.
Fifth: Appellees are barred by laches and estopped from alleging the new matters in the last paragraph of III (f) of the first cause of action (referred to in (f) above), because appellees knew of such matters through discovery long before trial and did not seek to amend its complaint to refer thereto until January 31,1956, to appellants’ surprise and prejudice, and such long delay was prejudicial to appellants.
This is a long record before us, and the matter is as complicated, both factually and legally, as is most antitrust litigation. We attempt to summarize the appellees’ position by first stating what it was not. It was not appellees’ position that appellants did not have certain exemptions from the antitrust laws under the Clayton and Capper-Volstead Acts, 15 U.S.C.A. § 12 et seq.; 7 U.S.C.A. §§ 291, 292, nor that they could not, as agriculturists, join together to make marketing agreements. It was appel-lees’ position that such exemptions so granted were not absolute. Appellants could monopolize by-product oranges or single strength orange juice, either in the national market or in the California-Arizona area market, provided they achieved their monopoly position lawfully. Appellants could set any price they desired for their juice. They could make any “true” processing contracts with TreeSweet and Silzle, or with anyone else. They could refuse to make oranges available to appellees, if activated by “proper” business motives, as distinguished from “improper” motives.
Appellees insist, however, that appellants having monopolized by-product oranges from which single strength juice was made, and by such monopolization having control over the amount of byproduct oranges available to independent contractors; having further set a price of $40.00 per ton for such oranges (a price alleged to have been one at which no independent processor could buy, process and compete with Sunkist in the single strength juice market); having at the same time (i. e., during the one year of 1951, here involved) made oranges available to TreeSweet and Silzle, competitors of appellees, under so-called “processing” contracts which were more than that because they permitted the competitors to secure oranges at a price substantially lower than $40.00 per ton; the appellants were thus guilty of a conspiracy or combination unauthorized by antitrust law, even as modified by the limited agricultural marketing exemptions.
Under this theory of the case, the court sought to leave with the jury several questions of fact, namely:
(1) Whether appellants had a legal monopoly of by-product oranges (and a resulting legal monopoly in single strength orange juice) in the California-Arizona market.
(2) Whether, if appellants did have such legal monopoly, it was used legally or illegally, in the particulars alleged.
(3) Whether such monopoly, if proved, gave appellants power and control over single strength orange fruit juice prices in the California-Arizona market.
(4) Whether such power and control, if proved, was used with the purpose or with the effect of eliminating a competitor in such market, i. e., eliminating ap-pellees.
(5) Whether such power and control, if proved, was sufficient to enable appellants to determine the price or the terms and conditions under which by-product oranges were available in 1951 to independent processors, including appellees.
(6) Whether appellants had conspired with non-defendant co-conspirators to unlawfully use their market power and control to appellees’ alleged consequent injury, or whether appellants had unlawfully used such monopoly power and control to appellees’ injury.
(7) What damages were proximately caused by appellants’ alleged actions.
With this explanation of our understanding of the theory of the case, we pass to:
III
Questions Raised On This Appeal
There are four principal questions raised on this appeal: Was any violation of antitrust laws made out? Was there error in instructing or refusing to instruct the jury? Was there error in rulings on admission and rejection of evidence? Was there error in affixing attorneys’ fees of $195,000 ? We shall discuss each in turn.
A. Was any violation of antitrust laws made out?
1. The Exemption of Agricultural Cooperatives Generally
There can be no conclusion as to the first error alleged until we determine the nature and extent of the exemption granted by law to agricultural cooperatives. This was raised by the pleadings and particularly, appellants’ first and separate defense.
Sunkist was a nonprofit agricultural cooperative marketing association. So was EOP, a subsidiary of Sunkist. So was ELP, an association of growers who were likewise members of Sunkist.
The exemption claimed by appellants rests within § 6 of the Clayton Act and § 1 of the Capper-Volstead Act. Section 6 of the Clayton Act (38 Stat. 731 (1914), 15 U.S.C.A. § 17) reads as follows:
“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects hereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”
Section 1 of the Capper-Volstead Act (42 Stat. 388 (1922), 7 U.S.C.A. § 291) reads in material part as follows:
“Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in association, corporate or otherwise * * * in collectively processing, preparing for market, handling, and marketing in interstate * * * commerce such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes * * *»
The legislative history of the Clayton and Capper-Volstead Acts makes it clear that farmers (including orange growers) were granted the right to combine, contract and conspire together in restraint of trade in associations which, without the exemptions, would have violated the Sherman Act. Its purpose was to permit the farmers to compete with large corporations. But by its terms, the exemption was not absolute — the individuals were permitted to associate in groups and the associations were permitted specifically to do but two things: arrange “marketing agencies in common” and contract and agree with their members participating, if necessary to effect such purposes. As the most recent Supreme Court decision states:
“Thus, the full effect of § 6 is that a group of farmers acting together as a single entity in an association cannot be restrained ‘from lawfully carrying out the legitimate objects thereof’ (emphasis supplied), but the section cannot support the contention that it gives such an entity full freedom to engage in predatory trade practices at will.” Maryland and Virginia Milk Producers Ass’n v. United States, supra, 362 U.S. at pages 465-466, 80 S.Ct. at page 852.
There have been few cases dealing with the Capper-Volstead Act exemptions. At the time this ease was tried in the district court, United States v. Borden Co., 1939, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181, was the leading case. It held that Capper-Volstead does not wholly exempt cooperatives, and particularly those conspiring with nonexempt legal entities. This same principle has been applied to labor unions, which have no absolute exemption from antitrust laws. Allen Bradley Co. v. Local Union No. 3, etc., 1945, 325 U.S. 797, 805, 65 S.Ct. 1533, 89 L.Ed. 1939. The Clayton Act, § 6, applied only to nonstock agricultural cooperatives. Section 1 of the Capper-Volstead Act extended the same exemption to capital stock agricultural cooperatives.
“[T]he general philosophy of both [acts] was simply that individual farmers should be given, through agricultural cooperatives acting as entities, the same unified competitive advantage — and responsibility — available to businessmen acting through corporations as entities.” Maryland and Virginia Milk Producers Ass’n v. United States, supra, 362 U.S. at page 466, 80 S.Ct. at page 853.
And in conclusion, Mr. Justice Black stated:
“[T]he [Capper-Volstead] Act did not leave cooperatives free to engage in practices against other persons in order to monopolize trade, or restrain and suppress competition with the cooperative.” Id., 362 U.S. at page 467, 80 S.Ct. at page 854.
We conclude, therefore, that no blanket exemption is created by either Section 6 of the Clayton Act or Section 1 of the Capper-Volstead Act which permits an agricultural cooperative to either unlawfully monopolize, or attempt to monopolize, under Section 2 of the Sherman Act, nor to do any acts to restrain or suppress competition, or which result in the restraint or suppression of competition prohibited by Section 1 of the Sherman Act, if such acts, in either event, fall within the prohibitions of the respective Sherman Act sections. Thus the question as to whether there has been a violation of the antitrust laws is ordinarily one to properly go to the jury.
We next consider if there was proof of the violation of antitrust laws, despite the limited exemption the appellant Sunkist enjoys, sufficient to make out a question of fact for the jury. To pass upon this, we must consider certain of the facts of this case in detail in an attempt to establish and define the product and the pertinent market with which we are here concerned.
2. The Product Involved
As the case went to the jury, the defendants Sunkist and EOP were charged, as appellees’ counsel put it on oral argument, with “a combination and conspiracy [under Sections 1 and 2 of the Sherman Act] to restrain trade in California citrus juices and to monopolize the production, processing and sale of those juices, primarily, insofar as appel-lee is concerned, single strength juices.” The contracts charged to be in restraint of trade were allegedly made with the purpose of eliminating a competitor, the appellees.
In the first cause of action contained in appellees’ amended complaint, the relevant market was designated as “canned citrus fruit juice, produced and processed in the State of California, and marketed throughout the United States.” Thus originally all citrus fruit juice was involved; orange, lemon and grapefruit. By the amendment to the complaint to conform to evidence, the relevant market was restricted to “single strength Valencia [orange] juice.”
■ In that respect it was alleged (again to conform to proof) that:
“A total of approximately 5,400,-000 gallons of single strength Valencia juice was processed in California in 1951. Of this amount, defendants EOP, TreeSweet and Silzle processed approximately 4,511,202 gallons of which amount approximately 3,044,394 gallons were processed by TreeSweet and Silzle under the contracts and arrangement [complained of] * * *. Because of the monopoly control by Sunkist and EOP over the quantity and price at which Valencia product oranges were made available to ■ independent processors of single strength juice other than TreeSweet and Silzle, and the aforesaid contracts, plaintiff was unable to and did not process any single strength Valencia juice in 1951.”
3. The Relevant Market
The record discloses that entirely apart from the marketing of citrus fruit itself as the end product, an important consideration in the citrus industry is the utilization of by-products, such as oils from the peel, peel and pulp for cattle feed, and the juices themselves. Juices are divided in the trade into three categories: (1) The so-called “hot concentrate juice” (the syrup base for mixed citrus drinks); (2) the cold, or so-called “frozen concentrate,” which is used to prepare the canned or frozen juice; and (3) the so-called “single strength,” being the natural and untreated juice of the orange. Oranges for fruit juice purposes are valued and sold by the extent of their sugar content. Valencia oranges are apparently particularly valued for their high sugar content, and perhaps for their time of arrival on the market (although this advantage, of course, partially disappears when juices are kept from one season to the next).
Oranges are grown primarily in three states — California, Arizona and Florida. Oranges from both East and West Coasts compete in the national markets, both in fresh oranges and by-products. Due to the freight rates, California and Arizona oranges and juices are sold on a two-price structure — cheaper in the East, where Florida is closer and the freight costs on Florida juice lower, and more expensive in the West, where transportation from Florida costs more. We conclude the relevant market area here involved was the California-Arizona area.
4. Competition and Prices in the Product Involved in the Relevant Market
During the year 1951, Sunkist controlled approximately seventy per cent of the total by-product Valencia orange market in the California-Arizona area, or 318,000 tons of by-product oranges.
The remaining thirty per cent of byproduct Valencia oranges grown in California-Arizona came from scattered growers such as: (a) Independent Citrus Growers & Shippers Association, a grower cooperative (Morgan Ward, selling agent); (b) Mutual Orange Distributors of Anaheim, California, a grower cooperative; (c) American Fruit Growers Company, an independent grower, packer and shipper; (d) Paramount Citrus Association, a corporation organized by various growers for profit; (e) an unorganized group of individual growers, members of (a) above, who did not desire to market through Morgan Ward.
In 1951 in the California-Arizona area, there were three principal independent processors of by-product oranges: Winekler & Smith, TreeSweet and Silzle. These had no growers to supply them oranges, so they were required to buy their by-product oranges from the aforementioned five “independent” groups of growers, or from Sunkist or its subsidiary EOP, or (as to a very small amount of fruit) from even “more independent” growers than the five independents above mentioned. Mutual, American and Paramount, mentioned in (b), (c) and (d) above, had their own processing facilities, and by 1951 were processing all their own fruit, so had none to sell to independent processors.
“Independent Citrus Growers & Shippers Association” had no processing facilities of its own and no sales organization. It therefore sold to independent processors. Whether these independent processors would buy by-product oranges to process into single strength juice depended, obviously, on the price they might be forced to pay for the oranges, and the price they might get for the canned or bottled single strength juice. If the processors could see no chance to make a profit, then the growers’ representatives were forced to make processing contracts with hired processors in order to realize anything on their by-product oranges, and to prevent a loss.
There is no question but that Sunkist was the “leader” on pricing within the industry. In 1951 Sunkist admittedly set a price of $40.00 per ton on oranges containing 120 pounds of “soluble solids.” (This is a term descriptive of what is left from an orange when water is extracted. It includes sugars, citric acid, and other solids. The average Valencia orange contains 120 pounds of soluble solids per ton of oranges.)
In 1951, “Independent Citrus Growers & Shippers Association” made a contract with Case-Swayne Co., Incorporated, an independent processor with no grower’s supply, to process its by-product oranges into canned single strength juice, selling it under the Case-Swayne label, paying a net to Independent after deducting costs and a profit. Independent had twelve to fifteen per cent of the total supply of byproduct oranges in the California-Arizona market, or at least 53,000 tons.
On August 6, 1951, Morgan Ward for Independent, signed a processing contract with Winckler by which Ward agreed to deliver sixty tons of by-product oranges per day up to three hundred and sixty tons per week during the two-months’ canning season for the production of frozen concentrate, but this did not produce single strength juice for Winckler to sell. On August 17, 1951, he wrote to Morgan Ward (Exhibit AZ) in which he complained that he was not getting oranges for single strength juice. He charged monopoly against Morgan Ward, and requested the latter to put the matter up to the By-Products Committee of the Independent Citrus Growers & Shippers Association. This was done; the matter was left entirely to Morgan Ward’s discretion. That company still refused to sell oranges to Winckler for single strength processing. Mr. Ward’s explanation is of interest. He said:
“Well, in 1951 I knew that we would be faced with a lot of fruit, there being no home for it outside of Winckler-Smith, Case-Swayne, Paramount and a few other small plants, a few small plants otherwise. I knew that we were going to have, in order to get money for the fruit for the growers, we were going to have to enter into participating contracts in processing this fruit, not with one, but several of these. So I wanted to be fair to Mr. Winckler, I wanted to be fair to Mr. Swayne and Paramount, for that matter, so I knew that Case-Swayne had no facilities except straight canned juice, so the first contract we entered into was with Case-Swayne for single-strength juice, orange juice.
“Q. That was early in the season ? A. Early in the year. That was the first reason I gave him that part of it.
“The second reason was that if I gave single strength to Winckler and single strength to Case-Swayne, we would have our oranges out in the market competing in canned juice form, competing against each other.
“Then in order to be fair again with Winckler, I gave him the concentrate deal. Even though he wanted some single strength, I did not give it to him for that reason.”
Winckler & Smith had been organized in 1946. The amounts of by-product oranges it had purchased primarily from Sunkist and thereafter from others up to and including 1950 had been as follows :
1946— $1,000,000 worth
1947— Substantially less
1948— $200,000 worth
1949— 3,500 tons from Sunkist
10.500 tons from Morgan Ward
4,300 tons from other sources
1950— 1,300 tons from Sunkist
11.500 tons from Morgan Ward
4,100 tons from other sour-es
During this same time, the tons of byproduct oranges it had purchased from other sources, including Morgan Ward, had been increasing. Thus it is not entirely accurate to state, as appellees do, that “appellee [Winckler & Smith], had been a regular customer of Sunkist in the purchase of by-product oranges since its organization in 1946,” up to 1951.
In 1951 Sunkist started out the year with plans for pooling and disposing of all its by-product oranges. The plan was to have EOP process the fruit, or to sell to other processors. A schedule of prices was established at which fruit was to be sold at a separate price per ton for each pound of soluble solids per ton, ranging from sixty to one hundred and fifty pounds.
The price set on by-product Valencia oranges for 1951 ranged from $17.00 per ton for fruit having sixty pounds of soluble solids to $51.50 per ton for fruit having one hundred and fifty pounds of soluble solids. Fruit having one hundred and twenty pounds of soluble solids was priced at $40.00 per ton, f. o. b. packing house. This price was set by Sam H. Kelly, general manager of Sunkist’s Los Angeles District Offiee. The “Independent Association” followed the “lead” of Sunkist as to price.
Sunkist sold 46,000 tons of by-product oranges at this price to independent processors in 1951. Apparently these oranges went into hot or frozen concentrate, as there was testimony such a price could be paid for such oranges so used in 1951 and produce a profit.
All other tonnage of Sunkist growers in 1951 was turned over to EOP for disposal. This was the largest by-product Valencia orange crop ever handled by EOP. It received 318,000 tons, processed 164,000 tons, and turned over 31,200 tons to ELP for processing at cost.
Exchange Orange thus had 122,800 additional tons of by-product oranges on hand. It sold 19,747 tons to General Foods; 14,842 tons to Hyland-Stanford; 6,773 tons to Mission Dry; and 3,730 tons to Hart’s for processing, or a total of 45,092 tons, under “custom packing” contracts, into hot and frozen orange concentrate, but not for single strength juice. It contracted with TreeSweet to process 24,148 tons into single strength juice, and Silzle to process 6,675 tons into single strength juice. These were the contracts described as two of “six acts” which are the basis of appellees’ complaint against Sunkist. Ten thousand six hundred and thirty tons were sold to Mission Dry and 817 tons to Hyland-Stanford under a “deferred payment plan.” This left 35,000 tons, approximately, which were unsuitable for processing into juice products.
The years immediately before 1951 had seen a change in the use of by-product oranges. In 1950 EOP processed eleven per cent of all frozen orange juice in the California-Arizona market. In 1951 it processed fifty-eight per cent. There was an increasing market for frozen orange juice. Nevertheless, it was advisable and necessary to maintain the market in canned single strength juice.
There were four principal independent processors of canned single strength orange juice in the California-Arizona area, namely, TreeSweet, Silzle, Case-Swayne and appellee. TreeSweet sold in the national market under its own label. Silzle sold in the national market to private label buyers. Case-Swayne sold largely in the California market under its own label “Case-Swayne.” Appellee sold in the national market under its “Ana-gold” label. These four canners were in competition with each other, and each of them competed with Sunkist, in the sale of canned single strength orange juice in interstate commerce.
5. Contracts in the 1951 Season
Under the 1951 contract between Exchange Orange and TreeSweet, Exchange Orange made by-product oranges available to TreeSweet on a consignment basis in such quantities as Exchange Orange determined. Exchange Orange agreed to pay TreeSweet its processing costs at specified rates and to pay the trucking costs of the fruit to TreeSweet’s plant. TreeSweet agreed to purchase the resultant juice at the Sunkist published selling price as of the date of purchase, less discounts and allowances of fifteen per cent plus an advertising allowance of seven cents per case. TreeSweet was not required to pay for the juice until it was sold. The oil and peel were to be the property of Exchange Orange.
Under this contract TreeSweet processed 24,148 tons of by-product oranges into canned single strength orange juice, and sold it in the same interstate markets under the TreeSweet label in competition with similar juice sold by Sunkist and Silzle.
Finley (general manager of Exchange Orange) admitted that the Exchange Orange-TreeSweet contract guaranteed TreeSweet against any inventory losses and protected it against any reductions in the market price for canned juice during both the selling and carry-over seasons. He admitted further that Tree-Sweet was guaranteed a profit under such contract. He stated that the Tree-Sweet contract provided, in effect, that Exchange Orange was to be paid for its by-product oranges on the basis of the difference between the amount credited to TreeSweet for processing such fruit and the price which TreeSweet paid Exchange Orange for the processed juice.
The amount credited to TreeSweet for processing the 24,148 tons was $859,004.-00, and the amount payable by TreeSweet for the juice processed therefrom was $1,204,031.41. The difference between these two figures, to wit: $345,027.41, was the amount TreeSweet actually paid Exchange Orange for the 24,148 tons without the peel and oil by-products, or at the rate of almost $14.29 per ton.
Under this contract, EOP was to get the oil and peel or the proceeds therefrom. The net return from the oil and peel was $10.81 per ton. Therefore, the total amount EOP received for the byproduct oranges processed under the TreeSweet contract was $25.10 per ton, namely, $14.29 actually paid by Tree-Sweet plus $10.81 for the oil and peel, or a price which was $19.12 less than the price for which the same quality of oranges were available for sale by Sunkist to other independent processors, including appellees.
Substantially the entire production of single strength orange juice under this contract was marketed under the Tree-Sweet label, and none of it was sold under the Sunkist label. TreeSweet received an advertising allowance of seven cents per case. The usual purpose of an advertising allowance was to advertise the brand name of the concern granting such allowance, but in this case Tree-Sweet was permitted to make any use it saw fit of this advertising allowance.
The contract with TreeSweet was justified on the ground that TreeSweet had the facilities to process the juice and the sales organization to move the merchandise, and on the ground that it was important that some California single strength juice be
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:
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songer_appel1_7_2
|
B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Norman J. ACKERBERG, Appellee, v. Clark E. JOHNSON, Jr., Roger G. Lindquist, Gary M. Petrucci, R. Hunt Greene, Piper, Jaffray & Hopwood, Inc., Appellants. Norman J. ACKERBERG, Appellee, v. Clark E. JOHNSON, Jr., Appellant. Roger G. Lindquist, Gary M. Petrucci, R. Hunt Greene, Piper, Jaffray & Hopwood, Inc. Norman J. ACKERBERG, Appellant, v. Clark E. JOHNSON, Jr.; Roger G. Lindquist; Gary M. Petrucci; R. Hunt Greene; and Piper, Jaffray & Hopwood, Inc., Appellees.
Nos. 88-5538, 88-5539 and 89-5093.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 12, 1989.
Decided Dec. 28, 1989.
W. Michael Drake, Minneapolis, Minn., for Lindquist.
Curtis D. Forslund, Minneapolis, Minn., for Johnson.
Floyd E. Siefferman, Jr., Minneapolis, Minn., for Ackerberg.
Before FAGG and BEAM, Circuit Judges, and HENLEY, Senior Circuit Judge.
BEAM, Circuit Judge.
This appeal arises out of the sale of 16,500 unregistered shares of Vertimag Systems Corporation stock for $99,000. Norman J. Ackerberg brought suit against Piper, Jaffray & Hopwood and several of its employees (the PJH defendants), as well as against Clark E. Johnson, Jr., the chairman of the board of Vertimag, from whom Ackerberg bought most of his shares. The complaint set forth nine counts, alleging violations of the Securities Act of 1933, 15 U.S.C. §§ 77a-77aa (1988), the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78kk (1988), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (1982) and various state securities laws. While many of these claims were ordered to arbitration and others dismissed, the district court refused to compel arbitration of the 1933 Act claims, and entered summary judgment in part of them in Ackerberg’s favor. All defendants appeal from the order of summary judgment, and Ackerberg cross-appeals from the district court’s calculation of damages. We reverse.
I.. BACKGROUND
Ackerberg bought the Vertimag shares in March of 1984. Ackerberg bought 12,-500 shares from Johnson, who, in addition to being the chairman of the board, was one of the founders of Vertimag and its largest individual stockholder. Ackerberg bought the remaining 4,000 shares from Roger Lindquist, a vice president at Piper, Jaffray & Hopwood, and the owner of at least 50,000 shares of Vertimag. Lind-quist’s shares were held by the Roger Lind-quist Partnership, an entity organized to invest in Vertimag and in other securities. Lindquist's partners were Gary Petrueci, a senior vice president at PJH who handled Ackerberg’s account, and James Vieberg, another registered representative at PJH. Ackerberg paid $6.00 per share for 16,500 shares, and paid PJH a commission of $2,062.
The Vertimag transaction began in October of 1983, when Vertimag proposed a private placement of $10,000,000 in securities, to be sold at $6.00 to $6.50 per share. In December of 1983, Ackerberg said that if he could invest around $100,000, he would be interested. Petrueci then gave Ackerberg a ninety-nine page private placement memorandum which contained detailed information about Vertimag.
On March 17, 1984, Ackerberg signed a subscription agreement, prepared by counsel for Vertimag. Ackerberg testified by deposition that he read and understood this document. Vertimag’s counsel stressed to Ackerberg that no sale could be made without the subscription agreement, which agreement informed Ackerberg that the Vertimag securities were unregistered and not readily transferable. Specifically, the agreement provided, in part, that:
2. The undersigned acknowledges and represents as follows:
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(e) That the undersigned has been given access to full and complete information regarding Vertimag....
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(g) That ... the Shares have not been registered under the Securities Act of 1933 and, therefore, cannot be sold unless they are subsequently registered under said Act or an exemption from such registration is available, (iii) there is presently no public market for the Securities and the undersigned may not be able to liquidate the investment ... and (iv) the transferability of the Securities is restricted. ...
3. The undersigned has been advised that the Securities are not being registered under the Securities Act of 1983 or the relevant state Securities laws and are being sold pursuant to exemptions from such Act and laws; and that your reliance upon such exemptions is predicted [sic] in part on the undersigned’s representations to you as contained herein.
Ackerberg also represented in the subscription agreement that his yearly income was in excess of $200,000, that his net worth was over $1,000,000, and that his liquid assets exceeded $500,000. Indeed, Acker-berg’s account at PJH alone totaled around $500,000.
Ackerberg began this litigation in March of 1985. As indicated, Ackerberg’s complaint contained nine counts against Johnson, PJH, and its employees Lindquist, Pe-trucci, and R. Hunt Greene, who was also involved in the sale of Vertimag to Acker-berg. Count one was based on § 12(1), count two on § 12(2), and count three on § 17(a) of the 1933 Act. Count four was based on § 10(b) of the Act of 1934. Counts five through eight were based on common law fraud, breach of contract, and violation of the Minnesota Blue Sky laws. Count nine alleged RICO violations. The third count was dismissed by the district court on June 11, 1985, and the sixth count dismissed as to Johnson on March 14, 1986. In the order of March 14, 1986, the district court also refused to dismiss the 1933 Act claims against Johnson, finding that Johnson had not proven entitlement to an exemption from registration under the Act. Counts four through nine against the PJH defendants were ordered to arbitration, leaving only the 1933 Act claims as to them.
On August 23, 1988, the district court entered summary judgment in favor of Ackerberg on the § 12(1) claim and refused to compel arbitration of either remaining 1933 Act claim. Johnson’s motion for summary judgment on all claims remaining against him was denied. The district court denied the motions of defendants for reconsideration on November 4, 1988.
The district court’s order of November 4, 1988, entered pursuant to Ackerberg’s motion under Rule 54(b) of the Federal Rules of Civil Procedure, was a final judgment as to Count I of the amended complaint. Rule 54(b) allows the entry of a final judgment “as to one or more but fewer than all of the claims or parties” in a case involving multiple claims and multiple parties. The court's entry of judgment on Ackerberg’s § 12(1) claim leaves pending the § 12(2) claim against Johnson and the PJH defendants, as well as claims four, five, seven, eight and nine against Johnson. The district court could enter a final judgment pursuant to Rule 54(b) only by determining that “there is no just reason for delay” within the meaning of the Rule. The court stated in its order of November 4, 1988, that a final judgment under Rule 54(b) was appropriate because “plaintiff’s counsel has represented that by the entry of such judgment, this matter may be effectively terminated, and because there is no just reason for delay in the entry of an order for judgment.” Order, Civ. No. 4-87-159, Nov. 4, 1988, at 7.
On January 10, 1989, the district court calculated damages on the § 12(1) claim by using a rescissionary formula which awarded Ackerberg the difference between the $6.00 per share he paid and $2.75 per share, the amount contemplated in a private placement proposed for May of 1984. Acker-berg was thus awarded damages of $14,-932.70 against the PJH defendants, and $46,716.07 against Johnson. The district court denied Ackerberg’s motion to amend the judgment.
The PJH defendants and Johnson appeal from the order of November 4, 1988, which order denied reconsideration of the final judgment entered, and from the court’s order refusing to compel arbitration of the 1933 Securities Act claims. On cross-appeal, Ackerberg appeals from the order denying his motion to recalculate damages.
II. DISCUSSION
A. Arbitration of 1933 Act claims
We begin with the order holding that Ackerberg’s 1933 Act claims were not arbitrable under Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). The PJH defendants argued to the district court that Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), which held that claims arising under the Act of 1934 are arbitrable, should also apply to claims arising under the 1933 Act. Defendants argued that McMahon effectively overruled Wilko, since the Court’s rationale could be applied to 1933 Act claims as well as to 1934 Act claims. Indeed, after McMahon, many courts did find that 1933 Act claims were arbitrable for that reason. See Rodriguez De Quijas v. Shearson/American Express, Inc., — U.S. -, 109 S.Ct. 1917, 1923 n. 1, 104 L.Ed.2d 526 (1989) (Stevens, J., dissenting). See also McMahon, 482 U.S. at 243, 107 S.Ct. at 2346 (Blackmun, J., dissenting) (“In today’s decision, however, the Court effectively overrules Wilko by accepting the Securities and Exchange Commission’s newly adopted position that arbitration procedures in the securities industry and the Commission’s oversight of the self-regulatory organizations (SROs) have improved greatly since Wilko was decided.”). The district court in this case, however, agreed with the Second Circuit that “the [Supreme] Court ... did not overrule [Wilko] and it continues to govern us.” Order, Civ. No. 4-87-159, Aug. 23, 1988, at 7 (quoting Chang v. Lin, 824 F.2d 219, 222 (2d Cir.1987)). Thus, the district court refused to compel arbitration of the 1933 Act claims.
While, at the time, the district court was correct in declining to find that Wilko had been tacitly overruled, it is now clear that Wilko is no longer the law. In Rodriguez De Quijas, the Court noted that Wilko was based largely on a distrust of arbitration, and that such distrust is inconsistent with a clear congressional policy favoring arbitration. Wilko, the Supreme Court found, was “out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez De Quijas, 109 S.Ct. at 1920. Thus, the Court concluded that “Wilko was incorrectly decided and is inconsistent with the prevailing uniform construction of other federal statutes governing arbitration agreements in the setting of business transactions.” Id. at 1922. From Rodriguez De Quijas, then, it is clear that Acker-berg’s 1933 Act claims are arbitrable.
Nevertheless, Ackerberg makes two arguments in support of the proposition that the district court’s refusal to compel arbitration should not be reversed: (1) that the district court relied not only on Wilko, but also found in the alternative that the PJH defendants had waived their right to arbitration of the 1933 Act claims; and (2) that Volt Information Sciences, Inc. v. Board of Trustees, — U.S. -, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) holds that an agreement specifying that state law governs the arbitrability of claims must be given effect, that the arbitration agreement between Ackerberg and Johnson provides that Minnesota law should govern arbitration, and that in this case, Minnesota law provides that 1933 Act claims are not arbitra-ble. We find neither argument persuasive.
First, Ackerberg argues that the district court was correct in finding that the PJH defendants waived their right to arbitration of the 1933 Act claims. By participating in discovery and especially by filing a motion for summary judgment on the 1933 Act claims, the PJH defendants took action inconsistent with their right to arbitration. The district court apparently credited this argument, for it held that:
Even if the law supported sending plaintiff’s Securities Act claims to arbitration, the Court would deny defendants’ motion because defendants have waived their purported right to arbitration by invoking the judicial machinery to this extent, and because arbitration of the Securities Act claims would not significantly advance the interests of judicial economy.
Order Civ. No. 4-87-159, Aug. 23, 1988, at 7. We cannot agree that, given the state of the law during the pendency of this case, the PJH defendants waived their right to arbitration.
It is clear that a question of waiver is one of law and subject to de novo review. See Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985). We, therefore, look to whether the acts of the PJH defendants constitute, as a matter of law, a voluntary relinquishment of a known right.
Federal policy clearly favors arbitration. The Supreme Court has made it clear that “[t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). See also Nesslage v. York Securities, Inc., 823 F.2d 231, 234 (8th Cir.1987). This circuit has uniformly affirmed district court decisions which have found, under similar circumstances, no waiver of a right to arbitration. See Nesslage, 823 F.2d 231; Fogarty v. Piper, 781 F.2d 662 (8th Cir.1986); Phillips v. Merrill Lynch, Pierce, Fenner & Smith, 795 F.2d 1393 (8th Cir.1986). These three cases establish that, especially in cases in which any delay in making a motion to compel arbitration is based on unfavorable or uncertain law, waiver should not be found.
In Nesslage, defendants waited almost two years before filing a motion to compel arbitration, and meanwhile actively participated in discovery. Nesslage, 823 F.2d at 234. The district court found no waiver, and in affirming, we found it significant that at the time of the motion, claims arising under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 of the Securities Exchange Commission were not clearly arbitrable. Following the decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), which held that district courts must compel arbitration of pendent arbitrable claims, defendants made a motion to compel arbitration based on this change in the law. We found that since the motion “was filed soon after the Supreme Court’s decision in [Byrd],” it was “not untimely filed.” Nesslage, 823 F.2d at 234.
Similarly, in Fogarty, the motion to compel arbitration was not made until over one and one-half years after the litigation began. Fogarty v. Piper, 767 F.2d 513, 514 (8th Cir.1985). Defendants argued that the delay in filing the motion was due to a change in the law. At the time litigation began, Kiehne v. Purdy, 309 N.W.2d 60 (Minn.1981) provided that Minnesota Securities Act claims were not arbitrable. During litigation, however, the Supreme Court held in Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) that states cannot invalidate arbitration clauses which are otherwise valid under the Federal Arbitration Act. Fogarty, 767 F.2d at 515. Thus, defendants filed a motion to compel arbitration, and this circuit agreed with the district court that defendants had not waived their right to arbitration. Fogarty, 781 F.2d at 663.
And in Phillips, the district court found no waiver where the litigation began in July of 1981, but the motion to compel arbitration was not made until March of 1985. Phillips, 795 F.2d at 1394. Plaintiff’s claims arose under Rule 10b-5 and were thus not clearly arbitrable until McMahon, decided in 1987. Following the Supreme Court’s decision in Byrd, which held that district courts must compel arbitration of pendent arbitrable claims, defendants filed a motion to compel arbitration, and this circuit agreed with the district court that the “motion was timely in light of the recent Supreme Court decision.” Id. at 1396 n. 9.
This case involves a similar situation. Prior to Rodriguez De Quijas, the PJH defendants were correct in relying upon Wilko for the proposition that their 1933 Act claims were not arbitrable. Thus, any motion to compel arbitration, given Wilko, would have been futile. Defendants must have known this, since they did make motions to compel arbitration of the other claims which were clearly arbitrable. Counts four through nine of plaintiffs complaint, based on Rule 10b-5, common law fraud, the Minnesota Blue Sky laws, breach of contract, and RICO, were all ordered to arbitration after motions by the PJH defendants. Moreover, the PJH defendants made their motion to compel arbitration of the 1933 Act claims on September 29, 1987, soon after the decision of June 8, 1987, in McMahon (which only arguably overruled Wilko). Thus, the PJH defendants made their motion as soon as the law appeared to allow an arbitration procedure.
Further, we cannot find waiver, the voluntary relinquishment of a known right, in a situation in which no right existed. Prior to Rodriguez De Quijas, the PJH defendants, at least in this Circuit, had no established right to compel arbitration of their 1933 Act claims. To find that the PJH defendants waived a right they did not have until after Rodriguez De Quijas is not only illogical, but also would encourage litigants, in order to avoid a finding of waiver, to file motions they knew to be futile. In Benoay v. Prudential-Bache Sec., Inc., 805 F.2d 1437 (11th Cir.1986), the Eleventh Circuit found no waiver where defendants did not file a motion to compel arbitration for over two and one-half years after litigation began. Since the motion was filed after a change in the law, the Eleventh Circuit found that the motion was timely. Id. at 1440. Like the Eleventh Circuit, we cannot “require a litigant to engage in futile gestures merely to avoid a claim of waiver.” Id. (quoting Miller v. Drexel Burnham Lambert, Inc., 791 F.2d 850, 854 (11th Cir.1986)). See also Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 696-97 (9th Cir.1986) (since the intertwining doctrine before the decision in Byrd precluded arbitration of plaintiffs claims, defendant’s motion to compel arbitration before Byrd would have been futile, and failure to make it was thus not an act inconsistent with a known right); Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 466 (10th Cir.1988) (citations omitted) (“Because Shearson almost certainly could not have obtained an order for arbitration of the Rule 10b-5 claim prior to McMahon, it did not waive its right to arbitrate the claim. There was no requirement that Shearson make a futile attempt to obtain arbitration on the federal claim given the state of the law; indeed, it would be difficult to argue that such an attempt had a basis in existing law.”). Accordingly, we find no waiver by the PJH defendants of their right to arbitration of the 1933 Act claims.
We now consider Ackerberg’s second argument, made for the first time at oral argument, in support of the district court’s order refusing to compel arbitration of the 1933 Act claims. Ackerberg contends that even if we find no waiver, we cannot compel arbitration of the 1933 Act claims because Minnesota law does not allow arbitration of 1933 Act claims, and because Volt Information Sciences, Inc. v. Board of Trustees, — U.S. -, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) requires that we determine arbitrability according to Minnesota law. We disagree with Ackerberg’s reading of both Volt and Minnesota law.
Ackerberg relies on paragraph 15 of the customer agreement signed by PJH and Ackerberg. Paragraph 15 requires that “[t]his agreement and its enforcement shall be governed by the laws of the State of Minnesota.” Ackerberg argues that the parties agreed to have Minnesota law govern any arbitration arising out of their transaction, and that Minnesota law, in Johnson v. O'Brien, 420 N.W.2d 264 (Minn.App.1988), provides that claims arising under § 12 of the 1933 Act are not arbitrable. Ackerberg thus relies on Volt to conclude that where the parties agree that state law will control their arbitration agreement, and where state law differs from federal law, the state law will control.
Volt, however, cannot be read as Acker-berg suggests. Volt involved a conflict between a provision of the California Arbitration Act which allows a court to stay arbitration pending resolution of related, third-party litigation, and the Federal Arbitration Act, which contains no such provision. The Supreme Court held that since the parties agreed that their arbitration agreement would be governed by the law of California, application of the procedural rules in the California Arbitration Act was not preempted by the Federal Arbitration Act. Volt, 109 S.Ct. at 1251. Volt thus holds that the parties to an arbitration agreement can agree that state rules concerning arbitration will govern their proceedings. It clearly does not hold that state law can determine whether any given claim is arbitrable under the Federal Arbitration Act. Whether a claim is arbitrable under federal law is not a procedural question, and Volt clearly relies on this distinction. Hence, Volt does no more than hold that where “the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA.” Id. at 1255. The Supreme Court did not hold that state law could prevent arbitration of a federal claim otherwise arbitrable under federal law.
Moreover, we do not read Minnesota law to preclude arbitration of claims arising under the Securities Act of 1933. The state district court in Johnson denied defendant’s motion to compel arbitration of its 1933 Act claims based on Wilko. The Minnesota Appeals Court affirmed, finding that, in 1988, Wilko was in fact controlling. The appeals court thus declined to read McMahon as if it overruled Wilko. “Until Wilko is overruled, we are compelled to apply the Supreme Court’s prevailing precedents with respect to predispute arbitration agreements and federal securities law.” Johnson, 420 N.W.2d at 267. Given that Wilko has now been expressly overruled, we conclude without difficulty that when construing federal law, as the Minnesota Appeals Court did in Johnson, the Minnesota courts will follow Rodriguez De Quijas and find that 1933 Act claims are arbitrable. Neither Volt nor Minnesota law, then, provides any obstacle to the arbi-trability of Ackerberg’s 1933 Act claims.
B. The § 12(1) 1933 Act claim against defendant Johnson
Although we find that Ackerberg’s 1933 Act claims against the PJH defendants are arbitrable, we must treat the § 12(1) 1933 Act claim against defendant Johnson differently. Johnson had no arbitration agreement with Ackerberg, nor was his position the same as that of the PJH defendants for purposes of federal securities law. On appeal, then, Johnson argues that the district court erred in its order of August 23, 1988, in which it granted summary judgment in favor of Ackerberg by concluding that Johnson was not entitled to an exemption under § 4(1) of the 1933 Act. We agree with Johnson that he is entitled, as a matter of law, to an exemption under § 4(1), 15 U.S.C. § 77d (1988), because Johnson is not an issuer, underwriter or dealer.
Johnson argues that he is entitled to an exemption under § 4(1) of the 1933 Act, which provides that the registration requirements of the 1933 Act, found in 15 U.S.C. § 77e, shall not apply to “transactions by any person other than an issuer, underwriter, or dealer.” 15 U.S.C. § 77d(l) (1988). We agree with the district court that the burden of proving entitlement to an exemption is on the party claiming entitlement. See SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); G. Eugene England Found. v. First Fed. Corp., 663 F.2d 988, 989 (10th Cir.1973). We disagree, however, that Johnson has failed to meet his burden. In the absence of any finding that this transaction involved a distribution, Johnson has shown that he is not an issuer, underwriter or dealer within the meaning of § 4(1) of the 1933 Act.
The terms “issuer” and “dealer” are defined, respectively, in §§ 2(4) and (12), 15 U.S.C. §§ 77b(4) and (12). The parties do not seriously argue that Johnson was an issuer or a dealer. Clearly he is neither. Rather, Ackerberg contends that Johnson is an underwriter within § 4(1).
When considering whether Johnson is an underwriter, it is helpful to consider that the § 4(1) exemption is meant to distinguish “between distribution of securities and trading in securities.” L. Loss & J. Seligman, 2 Securities Regulation 627 (3d ed. 1989) (quoting H.R.Rep. No. 85, 73d Cong., 1st Sess. 15 (1933)). See also Hol-schuh, 694 F.2d at 137-38 (the 1933 Act “was created to exempt routine trading transactions with respect to securities already issued and not to exempt distributions by issuers or acts of others who engage in steps necessary to such distributions”).
The statutory definition of “underwriter” is found in § 2(11), 15 U.S.C. § 77b(ll) (1988). “The term ‘underwriter’ means any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security.” The congressional intent in defining “underwriter” was to cover all persons who might operate as conduits for the transfer of securities to the public. T. Hazen, The Law of Securities Regulation § 4.24, at 141 (1985) (quoting H.R.Rep. No. 85, 73d Cong., 1st Sess. 13-14 (1933)). Thus, “underwriter” is generally defined in close connection with the definition and meaning of “distribution.” See Eugene England, 663 F.2d at 989 (“An underwriter is one who has purchased stock from the issuer with an intent to resell to the public.”); Ingenito v. Bermec Corp., 441 F.Supp. 525, 535 (S.D.N.Y.1977) (“It is apparent that to be an underwriter within the meaning of the ’33 Act, one must participate, in some manner, in the distribution of the securities to the public.”) The term “underwriter” thus focuses on “distribution.” Given the statutory definition of “underwriter,” the exemption should be available if: (1) the acquisition of the securities was not made “with a view to” distribution; or (2) the sale was not made “for an issuer in connection with” a distribution. See 15 U.S.C. § 77b(ll) (1988); ABA Report, The Section “^(PA)" Phenomenon: Private Resales of “Restricted" Securities, 34 Bus.Law 1961, 1975 (July 1979); Hazen, The Law of Securities Regulation at § 4.23, at 138. Relevant to both inquiries are whether the securities have come to rest in the hands of the security holder and whether the sale involves a public offering.
We begin by considering whether the securities were acquired by Johnson with a view to their distribution. The inquiry depends on the distinction between a distribution and mere trading; so long as Johnson initially acquired his shares from the issuer with an investment purpose and not for the purpose of reselling them, the acquisition was not made “with a view to” distribution. While this determination would at first seem to be a fact-specific inquiry into the security holder’s subjective intent at the time of acquisition, the courts have considered the more objective criterion of whether the securities have come to rest. That is, the courts look to whether the security holder has held the securities long enough to negate any inference that his intention at the time of acquisition was to distribute them to the public. Many courts have accepted a two-year rule of thumb to determine whether the securities have come to rest. See United States v. Sherwood, 175 F.Supp. 480, 483 (S.D.N.Y.1959) (“The passage of two years before the commencement of distribution of any of these shares is an insuperable obstacle to my finding that Sherwood took these shares with a view to distribution thereof."). This two-year rule has been incorporated by the SEC into Rule 144, which provides a safe harbor for persons selling restricted securities acquired in a private placement. 17 C.F.R. § 230.144 (1989). Professor Loss has also noted that a three-year holding period is “well nigh conclusive” that securities were acquired without a view to distribution. L. Loss & J. Seligman, 2 Securities Regulation at 672.
Johnson purchased his securities in 1979 or 1980, when Vertimag Systems was incorporated in California. He did not sell any of these shares to Ackerberg until 1984. While Ackerberg contends that the Roger Lindquist Partnership purchased its shares with a view to distribution, given an ongoing pattern of distributions beginning shortly after the partnership’s acquisition of its shares, see Brief for Appellee at 15-16, Ackerberg makes no such contention about Johnson’s shares. Thus, Johnson held his shares for at least four years before selling them to Ackerberg, a period well in excess of the usual two years required to find that the securities have come to rest.
Our second inquiry is whether the resale was made “for an issuer in connection with” a distribution. Whether the sale was “for an issuer” can also be determined by whether the shares have come to rest. That is the best objective evidence of whether a sale is “for an issuer” is whether the shares have come to rest. See ABA Report, 34 Bus.Law. at 1975.
To determine whether the sale was made “in connection with” a distribution, however, requires that we consider directly the meaning of “distribution,” and thus whether the resale involved a public offering. The definition of “distribution” as used in § 2(11) is generally considered to be synonymous with a public offering. In Gilligan, Will & Co. v. SEC, 267 F.2d 461 (2d Cir.), cert. denied, 361 U.S
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 gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_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.
STANDARD FORGE AND AXLE COMPANY, INC., Appellant, v. William T. COLEMAN, Secretary of the Department of Transportation, et al., Appellees.
No. 75-2151.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 14, 1976.
Decided Jan. 11, 1977.
Rehearing Denied Feb. 14, 1977.
Peter N. Lalos, Washington, D. C., for appellant. Nathaniel A. Humphries, Washington, D. C., also, entered an appearance for appellant.
Karen I. Ward, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, David R. Addis, Asst. U. S. Attys., and Roger C. Spaeder, Asst. U. S. Atty., Washington, D. C., at the time the brief was filed, were on the brief for appellee.
Before ROBB and WILKEY, Circuit Judges, and GESELL, United States District Judge for the United States District Court for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion for the Court filed by GESELL, District Judge.
WILKEY, Circuit Judge, dissents to the foregoing opinion.
GESELL, District Judge:
Appellant petitioned the Administrator of the National Highway Traffic Safety Administration for repeal of Federal Motor Vehicle Safety Standard No. 121. 49 C.F.R. 571.121 (1974). When the petition was denied appellant sought review by the United States District Court for the District of Columbia. Judge John H. Pratt dismissed the petition for lack of subject matter jurisdiction, and this appeal ensued. We affirm.
Pursuant to the National Traffic and Motor Vehicle Safety Act of 1966, Federal Motor Vehicle Safety Standards are established by the Administrator under authority delegated by the Secretary of Transportation. 15 U.S.C. § 1392. The Administrator promulgated Federal Motor Vehicle Safety Standard No. 121 to establish “performance and equipment requirements for braking systems for vehicles equipped with air brake systems.” The Administrator had by rule, 49 C.F.R. 553.31, provided that any interested person could petition to “amend or repeal” such a standard and appellant accordingly petitioned for total repeal, alleging that the standard was unnecessary and in excess of statutory authority. When the petition was denied for reasons stated and published in the Federal Register, 40 Fed.Reg. 2351, appellant sought review in the District Court, all administrative procedures having been exhausted.
Section 105(a)(1) of the National Traffic and Motor Vehicle Safety Act provides:
In a case of actual controversy as to the validity of any order under [Section 103], any person who will be adversely affected by such order when it is effective may at any time prior to the sixtieth day after such order is issued file a petition with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such order. ... 15 U.S.C. § 1394(a)(1)
In addition to this special judicial review provision, section 105(a)(6) of the Act provides:
The remedies provided for in this subsection shall be in addition to- and not in substitution for any other remedies provided by law. 15. U.S.C. § 1394(a)(6)
Appellant contends that this latter section Was designed to provide concurrent jurisdiction in the United States District Court and the United States Court of Appeals, and that lacking an exclusive review provision it could choose in its interest how best to seek review. In response the Administrator contends that where Congress has provided a special and adequate procedure for judicial review, as it has done here, that procedure is to be considered exclusive except in special circumstances not present here.
Appellant mistakenly relies on Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). While the Supreme Court did recognize jurisdiction in a District Court to review an order of the Food and Drug Administration under a comparable special and reserved jurisdiction statute, 21 U.S.C. § 371(f)(1) and (6), the facts here are wholly different. In Abbott Laboratories the special review provision was not available, so the District Court was properly called upon to act. As the Court stated, the issue was whether the fact that
because the statute includes a specific procedure for . review of certain enumerated kinds of regulations, not encompassing those of the kind involved here, other types were necessarily meant to be excluded from any pre-enforcement review. 387 U.S. at 141, 87 S.Ct. at 1511.
In the present case the special review provision was clearly available. The District Court, accordingly, properly relied on our decision in Nader v. Volpe, 151 U.S. App.D.C. 90, 466 F.2d 261 (1972), where we dealt with this very problem under the Motor Vehicle Safety Act itself.
After reviewing the “other remedies” jurisdictional provision we were unwilling to “construe that provision as a license to resort to nonstatutory remedies,” and confined that provision “to instances of agency action which is ultra vires or damaging beyond the capability of the statutory procedure to repair.” 151 U.S.App.D.C. at 100; 466 F.2d at 271.
Appellant made no complaint below that statutory procedures were inadequate, that relief could not be obtained by review here, or that any other extraordinary circumstances pertained. The statutory mode of review would have served adequately. Standard Forge was in the wrong court.
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_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
WOOD et al. v. FRANKLIN LIFE INS. CO.
(Circuit Court of Appeals, Fifth Circuit.
February 3, 1927.)
No. 4867.
1. Mortgages <§=>426 — Mortgagor, mortgagee, and persons acquiring interest subsequent to mortgage are only proper parties to foreclosure suit.
Only proper ■ parties to suit to foreclose mortgage are mortgagor, mortgagee, and those whose interests have been acquired subsequently to date of mortgage.
2. Mortgages <§=>426 — Persons claiming title by adverse possession superior to mortgagor’s title are not proper parties to foreclosure suit.
Parties claiming title superior to lien of mortgage, based on possession adverse to mortgagor for statutory period of limitations, are not proper parties to foreclosure suit.
3. ’ Estoppel <§=>68(2) — Defendants held estopped from asserting that they were necessary parties to prior foreclosure suit, contrary to position taken by them in such suit.
Where suit to foreclose mortgage was dismissed as to persons who by answer asserted title by adverse possession superior to lien of mortgage, such persons could not, in subsequent action against them for possession of same land, take an inconsistent position and assert that they were necessary parties to foreclosure suit, and that, being so, they had not lost their equity of redemption.
In Error to the District Court of the United States for the Western District of Texas; Du Yal West, Judge.
Action by the Franklin Life Insurance Company against Ellington F. Wood and another. Judgment for plaintiff, and defendants bring error.
Affirmed.
W. M. Sleeper, of Waco, Tex. (S. D. Snodgrass, of Temple, Tex., and E. Y. Boynton and Sleeper, Boynton & Kendall, all of Waco, Tex., on the brief), for plaintiffs in error.
Eugene P. Locke, of Dallas, Tex. (Locke, Locke, Stroud & Randolph, of Dallas, Tex., on the brief), for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
The Franklin Life Insurance Company brought suit and recovered judgment for the possession of a tract of land. It traced its title through a deed from defendants, Ellington F. Wood and Mary Ethel Wood, his wife, and the foreclosure of a mortgage executed by their grantee, Willie B. Wood. Defendants were made parties in the foreclosure suit, on the theory that they claimed an interest inferior to the lien of the mortgage, but were dismissed out of that suit upon the filing of their answer, which contained averments to the effect that they were neither necessary nor proper parties, and were improperly joined, because they claimed title superior to the lien of the mortgage, and had been in actual possession, claiming title adversely to the mortgagor for the statutory period of limitations.
The defense set up in the present suit is that defendants were necessary parties to the foreclosure suit, and, being so, they have not yet lost their equity of redemption, and are entitled to remain in possession of the land until it is taken by suit against them. It is unnecessary to state the circumstances under which the mortgage was given, as defendants concede that it constitutes a valid lien, binding upon them.
The only proper parties to a suit- to foreclose a mortgage are the mortgagor, mortgagee, and those whose interests have been acquired subsequently to the date of the mortgage. Faubion v. Rogers, 66 Tex. 472, 1 S. W. 166. If the answer of defendants in the foreclosure suit was true, their title was superior to the lien of the mortgage, and they were not proper parties. Plaintiff proceeded on the theory that the answer was true. Defendants were thereafter estopped to take an inconsistent position, that would work an in'jury to the plaintiff, as would be the ease if it were forced to bring a new suit to settle a right that was actually involved in its original, foreclosure suit.
The judgment is affirmed.
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COWLING v. DEEP VEIN COAL CO., Inc.
No. 10024.
United States Court of Appeals Seventh Circuit
May 25, 1950.
Rehearing Denied Aug. 17,1950.
Joe Vol Butt, James M. Buthod, Evansville, Indiana, S. Hugh Dillin, Petersburg, Indiana, Dillin & Dillin, Petersburg, Indiana, for plaintiffs-appellants.
Benjamin G. Cox, Terre Haute, Indiana, Charles C. Whitlock, Terre Haute, Indiana, Gerald E. Hall, Princeton, Indiana, Gambill, Dudley & Cox, Terre Haute, Indiana, for defendant-appellee Deep Vein Coal Co., Inc.
Before KERNER, DUFFY and LINDLEY, Circuit Judges.
DUFFY, Circuit Judge.
Defendant Deep Vein Coal Company, Inc., (hereinafter referred to as “Deep Vein”), moved for a summary judgment assigning five reasons for such motion. The trial judge granted the motion without indicating the basis for his action. From a judgment entered in favor of Deep Vein plaintiffs bring this appeal.
Plaintiffs, claiming to own fractional undivided interests in the oil and gas under certain lands in Gibson County, Indiana, brought this action for an injunction and an accounting and other relief. Thé complaint, after setting forth diversity of citizenship and requisite jurisdictional amount in controversy, alleges that Deep Vein drilled a producing oil well upon the real estate in question without the prior consent of the plaintiffs, and that the proportionate share of the oil recovered, being the property of the plaintiffs, _ has been appropriated and converted by Deep Vein which has failed and refused to account for same to the plaintiffs. In addition plaintiffs allege that Deep Vein is operating another producing oil well or wells on adjacent lands in such a manner as to drain the oil from under the property described in the complaint, and that the defendant Farm Bureau Oil Company (hereinafter called “Farm Bureau”) has purchased from Deep Vein oil produced from the described premises, and has failed to account to plaintiffs for their proportionate share thereof.
The pleadings show and it is without dispute that on December 8, 1944, one Louise S. Davis was the owner of the entire fee simple title to 240 acres of land in Gibson County, Indiana, subject only to the interest of Citizens National Bank of Paris, Illinois, as trustee. The bank’s interest was subsequently acquired by Mrs. Davis and is of no importance in a consideration of the issues now before us. On said date Louise S. Davis, joined by her husband and the trustee, executed an oil ■and gas lease of said premises to Deep Vein. By its terms the lease expired on December 8, 1945, unless oil or gas were previously thereto produced from said premises.
On October 4, 1945, by an instrument duly recorded on October 8, 1945, Louise S. Davis and her husband executed a mineral deed to one Milton A. Lobree, which purported to convey “an undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described lands * * * together with the right of ingress and egress at all times for the purpose of mining, drilling, exploring, operating and developing said lands for oil, gas and other minerals * * The mineral deed was expressly made subject to the oil and gas lease to Deep Vein dated December 8, 1944, but covered and included “an undivided one-half (Y) interest of the oil royalty and gas rental or royalty to be paid under the terms of said lease.”
On October 8, 1945, Milton A. Lobree and his wife executed several mineral deeds conveying an undivided 20/240ths interest in the oil, gas and other minerals in, under and that may be produced from said real estate to plaintiff Cowling, an undivided 15/240ths interest to plaintiff Rockey, and an undivided l5/240ths interest to plaintiff Watson.
On October 18, 1945, by an instrument recorded October 23, 1945, Louise S. Davis and husband executed what purported to be an extension of the original oil and gas lease to Deep Vein, extending said original lease until September 1, 1947, and as long thereafter as oil or gas was produced from said leased premises in commercial quart titles, but that if no such oil or gas was produced before September 1, 1947, the original lease, as extended, was to be terminated.
Deep Vein’s answer sets forth five defenses. It places in issue many of the material allegations of the complaint, and in addition pleads three affirmative defenses. In its second defense, Deep Vein asserts “that it has been paid for the working interest or has caused to be paid for the royalty sums for the oil removed by defendant, Deep Vein Coal Company, Inc., from said premises, except that a portion of the royalty oil has been suspended at the request of plaintiffs herein in accordance with the alleged ownership of plaintiffs as to such suspended portion, pending the determination of the issues presented by plaintiffs’ complaint and that defendant is ready and willing to furnish a complete statement of all oil produced by it from said premises and of all oil sold by it from said premises, and to disburse payment therefor according to any order or judgment of the Court which may issue in the premises, should said order direct payment in a manner different than has been heretofore made by this defendant.”
Defendant Farm Bureau answered that it had purchased oil from the tract in question between July 16, 1947, and May 24, 1948, and that it stands ready and willing to furnish a complete statement of all oil purchased by it from said premises and to disburse payment according to any order or judgment of the court should such order direct payment in a manner different from that which has- been made by it.
Neither answer was verified.
Deep Vein moved the district court to require plaintiffs to procure and file for its use an abstract of title to the real estate claimed by them as set forth in the complaint. This motion was granted and thereafter plaintiffs filed such abstract. Deep Vein, invoking Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., then moved for summary judgment, based upon the pleadings, the abstract of title, and the affidavit of one Sampliner. Plaintiffs filed an affidavit of Lobree, the grantor of the mineral deeds under which they claim.
Deep Vein insists that the trial court acted correctly in ordering summary judgment in its favor based upon the pleadings, the Sampliner affidavit, and the “admissions” in the abstract of title. We cannot agree. Although plaintiff did not answer or reply to Deep Vein’s affirmative defenses, an answer or reply was not required absent an order of the court. Rule 7(a), Federal Rules of Civil Procedure. They are deemed denied. Rule 8(d), id.; Radio Shack Corp. v. Radio Shack, Inc., 7 Cir., 180 F.2d 200. The pleadings considered alone present genuine issues as to material facts.
The material allegations of the Sampliner affidavit are controverted by the Lobree affidavit. If the intention of the parties as to authorizing Mrs. Davis to extend tnilaterally the lease to Deep Vein becomes material, certainly there is a violent disagreement as to the facts.
Nor can we agree with the defendant Deep Vein that the abstract of title produced by plaintiffs must necessarily be considered an “admission” by plaintiffs. It was produced under court order, upon motion of and for the use of defendant. An abstract thus furnished does not become part of the pleadings. O’Mara et al. v. McCarthy, 45 Ind.App. 147, 90 N.E. 330. Ordinarily abstracts of title are regarded as secondary evidence or hearsay, and in the absence of statutory enactment usually cannot be received in evidence. Wigmore on Evidence, 3d Ed., Sec. 1705. While plaintiffs do not deny that the abstract accurately sets forth recording data, they are entitled to object to inferences which Deep Vein seeks to draw, such as that plaintiffs stood by without protest or giving notice while Deep Vein was drilling the ,well, and that Deep Vein was without knowledge of the plaintiff’s interest prior to the date when their mineral deeds were recorded.
As genuine issues exist as to various material facts involved, the summary judgment should not have been entered unless it was apparent that the mineral deed from Davis to Lobree is wholly void as a matter of law and that such infirmity is apparent on the face of the instrument.
Defendant Deep Vein earnestly contends that the mineral deed from Davis to Lobree as well as the mineral deeds from Lobree to plaintiffs are absolutely void under Indiana law. Deep Vein argues that the right to explore and capture oil or gas is an exclusive right — that it is co-extensive with the ownership of the land involved and is a right indivisible with respect to the particular tract of land involved. Deep Vein argues that it is legally impossible to create several divisible interests in an exclusive right.
Plaintiffs and defendant Deep Vein seem to agree that the right to take oil from the lands of another is a profit á prendre in gross, which is an incorporeal hereditament, although plaintiffs deny that such interest is accessory to the superincumbent real estate. Plaintiffs and defendants also agree that the extent of plaintiffs’ rights must be determined by the law of Indiana, but that no Indiana case has defined the extent of the rights of multiple ownership as here created by the various mineral deeds under which plaintiffs claim. There is further agreement that the decisions of courts of the various States which have passed on the question have brought about a state of confusion concerning the exact nature of the interest involving the right to explore for oil and gas and to reduce same to possession.
Plaintiffs cite decisions of Illinois, California and Oklahoma courts as being persuasive of the rule that Indiana coiurts would follow, but defendant Deep Vein claims that- those decisions are not instructive or helpful in determining the correct applicable rule in Indiana. The answers to the questions here involved are of vital importance to land owners in Indiana as well as to those engaged in the important work of exploring for and producing oil and gas in that State. Where the Indiana courts have not rendered a controlling decision on a point of primary concern to Indiana citizens and others doing business in that State, federal courts should be reluctant to predict what the Indiana courts would decide is the correct rule of law. Therefore, as we have done heretofore (United States v. 150.29 Acres of Land, etc. in Milwaukee County, Wis., 7 Cir., 135 F.2d 878, 881), we think it is advisable to 'remand the case to the district court with instructions to retain jurisdiction for a reasonable time, so that the parties may seek in the courts of Indiana the answers to the questions of law here involved. Spector Motor Service, Inc., v. McLaughlin, Tax Commissioner, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago et al. v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Commission of Texas et al. v. Pullman Co. et al., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971.
As we do not reach the question of the validity of the mineral deed from Louise Davis to Lobree, or of the mineral deeds from Lobree to plaintiffs, we must reverse the summary judgment entered in the district court, because of the existence of genuine issues as to material facts, as hereinbefore indicated. In addition, upon remand we direct the district court to retain jurisdiction for a reasonable time until the parties can litigate the questions here raised in the courts of Indiana or may otherwise dispose of the case.
Reversed.
. The authority relied upon for the motion and order is Burns’ Indiana Stats., 1933, Sec. 2-1032, which provides: “The court, on motion, may order a further bill of particulars, when the one filed is defective; and may, in all proper cases, upon motion, order a bill of particulars of the claim of either party, and abstract of title to be furnished.”
. Buie 56(c), Federal Buies of Civil Procedure, provides: “ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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. * * * ” (Emphasis added.)
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_usc1sect
|
803
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 16. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
VIRGINIA ELECTRIC AND POWER COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 9886.
United States Court oí Appeals Fourth Circuit.
Argued June 30, 1965.
Decided Oct. 6, 1965.
Patrick A. Gibson, Richmond, Va. (George D. Gibson, T. Justin Moore, Jr., and Robert F. Brooks and Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief), for petitioner.
Paul A. Sweeney, Atty., F. P. C. (Richard A. Solomon, Gen. Counsel, Howard E. Wahrenbrock, Sol., and Joseph B. Hobbs, Atty., F. P. C., on brief), for respondent.
Before BRYAN and J. SPENCER BELL, Circuit Judges, and THOMSEN, District Judge.
J. SPENCER BELL, Circuit Judge.
The petitioner, Virginia Electric and Power Company [hereinafter Vepco], seeks to set aside an interim order of the Federal Power Commission [hereinafter the Commission] entered under section 10(f) of the Federal Power Act. The order requires Vepco to pay a specified sum in partial satisfaction of its obligations for certain headwater benefits conferred by upstream dams constructed by the Government upon the petitioner’s Roanoke Rapids hydroelectric development project during the period between August 1, 1955, and December 31, 1962.
The petitioner’s project, which was constructed pursuant to a license issued by the Commission, commenced initial operations on July 18, 1955. At that time, the United States had in operation the upstream dams involved in this proceeding, both of which had begun operations in 1953. Pursuant to the mandate of the Act, an investigation was commenced by the Commission in 1956. Its purpose was to determine the amount of the annual charges which should be assessed against the petitioner’s project because of the headwater benefits conferred thereon by the Government’s upstream dams. Between 1956 and April of 1964, Vepco was kept informed of the progress of the study, and numerous conferences were held between members of the Commission’s staff and representatives of Vepco. In April of 1964, the staff prepared a report recommending that Vepco be assessed $983,300.00 for the benefits conferred by the upstream Government dams and $33,900.00 for the cost of making the study. Copies of the report were sent to Vepco for its comments. Vepco commented on the report and protested the headwater benefits assessment in a letter dated July 27, 1964. Two legal arguments against the assessment were advanced. First, it was contended that the Commission staff should have allowed an offset for re-regulation benefits provided to the Government by the Vepco project which Vepco claimed exceeded the amount of the headwater benefits and should, therefore, have resulted in no assessment against it. Second, it was asserted that the benefits should at least be split equally between the parties with the result that the Vepco charge would be one-half of the value of the net benefits accruing to its project. In the July 27 letter Vepco also submitted a figure of $559,900.00 as its computation of the value of the headwater benefits conferred upon it, assuming that the Commission had adopted a legally valid formula for its computations and that it was correct in rejecting the two legal arguments advanced by Vepco. Because of the legal questions raised in the July 27 letter, the staff submitted the matter of billing Vepco to the Commission.
On November 9, 1964, this court decided South Carolina Electric & Gas Co. v. Federal Power Comm., 338 F.2d 898. In that case both of the legal questions raised by Vepco in the July 27 letter were decided adversely to its contentions. The court also held that the formula used by the Commission (and utilized in computing the Vepco head-water benefits assessment here) was reasonable and lawful.
Subsequent to the judgment of this court in the South Carolina case, the Commission entered an order directing Vepco to pay $593,890 in partial satisfaction of its headwater benefits obligation. The order expressly recited that it was an interim billing based upon Vepco’s concessions in the July 27 letter regarding the quantity and value of the energy gain it derived from the upstream water flow regulation for the interval of the report. In its brief and in oral argument before us, Vepco has reiterated that it does not contest those facts. Nor, it seems, does Vepco now question the power of the Commission to enter an interim assessment as such. Its sole contention in its petition for a rehearing before the Commission and on this appeal is that the Commission had no authority to enter an order directing it to pay for any headwater benefits in the absence of a hearing and the compilation of a formal record which would occur at such a hearing.
We cannot agree with the petitioner’s contention. In view of Vepco’s concession, even now, of all the facts necessary to support the Commission’s order and of the Commission’s power to enter an interim billing order as such, we are at a loss to understand what would be gained by a formal hearing. The “record” before this court, which consists of extracts from the staff report and the correspondence of the parties, furnishes an ample factual basis for the petitioner’s arguments with respect to the points of law it has raised. The Commission, relying on this court’s thorough and exhaustive opinion in the South Carolina case, felt that it would have been futile to hold a hearing on purely legal questions which had been settled only so recently.
Neither the Federal Power Act nor the Commission’s regulations make an administrative hearing a condition precedent for an interim benefit assessment by the FPC. Nor, in our judgment, does due process require a hearing where, as here, no factual controversy exists and the litigant seeks merely to controvert the legal principles upon which the Commission acts, something he can readily do by exercising his statutory right of appeal to the federal courts. Cf. Lich-ter v. United States, 334 U.S. 742, 791, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Federal Communications Commission v. WJR, The Goodwill Station, Inc., 337 U.S. 265, 274, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949).
The petition to review and set aside the interim assessment order is denied.
Petition denied.
. “(f) That whenever any licensee hereunder is directly benefited by the construction work of another licensee, a permittee, or of the United States of a storage reservoir or other headwater improvement, the Commission shall require as a condition of the license that the licensee so benefited shall reimburse the owner of such reservoir or other improvements for such part of the annual charges for interest, maintenance, and depreciation thereon as the Commission may deem equitable. The proportion of such charges to be paid by any licensee shall be determined by the Commission; The li- ' .censees or permittees affected shall pay to the United States the cost of making such determination as fixed by the Commission.
“Whenever such reservoir or other improvement is constructed by the United States the Commission shall assess similar charges against any licensee directly benefited thereby, and any amount so assessed shall be paid into the Treasury of the United States, to be reserved and appropriated as a part of the special fund for headwater improvements as provided in section 810 of this title.
“Whenever any power project not under license is benefited by the construction work of a licensee or permittee, the United States or any agency thereof, the Commission, after notice to the owner or owners of such unlicensed project, shall determine and fix a reasonable and equitable annual charge to be paid to the licensee or permittee on account of such benefits, or to the United States if it be the owner of such headwater improvement.” 16 U.S.C.A. § 803(f).
. Vepco did not seriously question the $33,900.00 assessment for the cost of making the headwater benefits study.
. Vepco also bad filed an amicus brief in the South Carolina ease.
. This petition was denied on February 11, 1965.
. 16 U.S.C.A. § 825 l.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 16? Answer with a number.
Answer:
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sc_casesource
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020
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UNIVERSAL HEALTH SERVICES, INC., Petitioner
v.
UNITED STATES and Massachusetts, ex rel. Julio Escobar and Carmen Correa.
No. 15-7.
Supreme Court of the United States
Argued April 19, 2016.
Decided June 16, 2016.
Roy T. Englert, Jr., Washington, DC, for Petitioner.
David C. Frederick, Washington, DC, for Respondents.
Malcolm L. Stewart for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Mark W. Pearlstein, Laura McLane, Evan D. Panich, McDermott Will & Emery LLP, Boston, MA, M. Miller Baker, McDermott Will & Emery LLP, Roy T. Englert, Jr., Gary A. Orseck, Mark T. Stancil, Michael L. Waldman, Donald Burke, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Petitioner.
Thomas M. Greene, Michael Tabb, Elizabeth Cho, Greene LLP, Boston, MA, David C. Frederick, Derek T. Ho, Katherine C. Cooper, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC, for Respondents.
Justice THOMAS delivered the opinion of the Court.
The False Claims Act, 31 U.S.C. § 3729 et seq., imposes significant penalties on those who defraud the Government. This case concerns a theory of False Claims Act liability commonly referred to as "implied false certification." According to this theory, when a defendant submits a claim, it impliedly certifies compliance with all conditions of payment. But if that claim fails to disclose the defendant's violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the defendant has made a misrepresentation that renders the claim "false or fraudulent" under § 3729(a)(1)(A). This case requires us to consider this theory of liability and to clarify some of the circumstances in which the False Claims Act imposes liability.
We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liability. Specifically, liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant's noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading.
We further hold that False Claims Act liability for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated a condition of payment, not every violation of such a requirement gives rise to liability. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government's payment decision.
A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government's payment decision in order to be actionable under the False Claims Act. We clarify below how that rigorous materiality requirement should be enforced.
Because the courts below interpreted § 3729(a)(1)(A) differently, we vacate the judgment and remand so that those courts may apply the approach set out in this opinion.
I
A
Enacted in 1863, the False Claims Act "was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War." United States v. Bornstein, 423 U.S. 303, 309, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976). "[A] series of sensational congressional investigations" prompted hearings where witnesses "painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war." United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958). Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subjecting violators to double damages, forfeiture, and up to five years' imprisonment. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696.
Since then, Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims. See 31 U.S.C. § 3729(a) (imposing civil liability on "any person who ... knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval"). A "claim" now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See § 3729(b)(2)(A). The Act's scienter requirement defines "knowing" and "knowingly" to mean that a person has "actual knowledge of the information," "acts in deliberate ignorance of the truth or falsity of the information," or "acts in reckless disregard of the truth or falsity of the information." § 3729(b)(1)(A). And the Act defines "material" to mean "having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." § 3729(b)(4).
Congress also has increased the Act's civil penalties so that liability is "essentially punitive in nature." Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 784, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. § 3729(a) ; 28 CFR § 85.3(a)(9) (2015) (adjusting penalties for inflation).
B
The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal program in which healthcare providers serve poor or disabled patients and submit claims for government reimbursement. See generally 42 U.S.C. § 1396 et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts' Medicaid program, received counseling services at Arbour Counseling Services, a satellite mental health facility in Lawrence, Massachusetts, owned and operated by a subsidiary of petitioner Universal Health Services. Beginning in 2004, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 2009, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitalization. In October 2009, she suffered another seizure and died. She was 17 years old.
Thereafter, an Arbour counselor revealed to respondents Carmen Correa and Julio Escobar-Yarushka's mother and stepfather-that few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal. Respondents discovered that, of the five professionals who had treated Yarushka, only one was properly licensed. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D., but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision. Rather than ensuring supervision of unlicensed staff, the clinic's director helped to misrepresent the staff's qualifications. And the problem went beyond those who treated Yarushka. Some 23 Arbour employees lacked licenses to provide mental health services, yet-despite regulatory requirements to the contrary-they counseled patients and prescribed drugs without supervision.
When submitting reimbursement claims, Arbour used payment codes corresponding to different services that its staff provided to Yarushka, such as "Individual Therapy" and "family therapy." 1 App. 19, 20. Staff members also misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. For instance, one Arbour staff member who treated Yarushka registered for a number associated with " 'Social Worker, Clinical,' " despite lacking the credentials and licensing required for social workers engaged in mental health counseling. 1 id., at 32.
After researching Arbour's operations, respondents filed complaints with various Massachusetts agencies. Massachusetts investigated and ultimately issued a report detailing Arbour's violation of over a dozen Massachusetts Medicaid regulations governing the qualifications and supervision required for staff at mental health facilities. Arbour agreed to a remedial plan, and two Arbour employees also entered into consent agreements with Massachusetts.
In 2011, respondents filed a qui tam suit in federal court, see 31 U.S.C. § 3730, alleging that Universal Health had violated the False Claims Act under an implied false certification theory of liability. The operative complaint asserts that Universal Health (acting through Arbour) submitted reimbursement claims that made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifications and licensing requirements for these services. Specifically, the Massachusetts Medicaid program requires satellite facilities to have specific types of clinicians on staff, delineates licensing requirements for particular positions (like psychiatrists, social workers, and nurses), and details supervision requirements for other staff. See 130 Code Mass. Regs. §§ 429.422 -424, 429.439 (2014). Universal Health allegedly flouted these regulations because Arbour employed unqualified, unlicensed, and unsupervised staff. The Massachusetts Medicaid program, unaware of these deficiencies, paid the claims. Universal Health thus allegedly defrauded the program, which would not have reimbursed the claims had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff. The United States declined to intervene.
The District Court granted Universal Health's motion to dismiss the complaint. Circuit precedent had previously embraced the implied false certification theory of liability. See, e.g., United States ex rel. Hutcheson v. Blackstone Medical, Inc., 647 F.3d 377, 385-387 (C.A.1 2011). But the District Court held that respondents had failed to state a claim under that theory because, with one exception not relevant here, none of the regulations that Arbour violated was a condition of payment. See 2014 WL 1271757, *1, *6-*12 (D.Mass., Mar. 26, 2014).
The United States Court of Appeals for the First Circuit reversed in relevant part and remanded. 780 F.3d 504, 517 (2015). The court observed that each time a billing party submits a claim, it "implicitly communicate[s] that it conformed to the relevant program requirements, such that it was entitled to payment." Id., at 514, n. 14. To determine whether a claim is "false or fraudulent" based on such implicit communications, the court explained, it "asks simply whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment." Id., at 512. In the court's view, a statutory, regulatory, or contractual requirement can be a condition of payment either by expressly identifying itself as such or by implication. Id., at 512-513. The court then held that Universal Health had violated Massachusetts Medicaid regulations that "clearly impose conditions of payment." Id., at 513. The court further held that the regulations themselves "constitute[d] dispositive evidence of materiality," because they identified adequate supervision as an "express and absolute" condition of payment and "repeated[ly] reference[d]" supervision. Id., at 514 (internal quotation marks omitted).
We granted certiorari to resolve the disagreement among the Courts of Appeals over the validity and scope of the implied false certification theory of liability. 577 U.S. ----, 136 S.Ct. 582, 193 L.Ed.2d 465 (2015). The Seventh Circuit has rejected this theory, reasoning that only express (or affirmative) falsehoods can render a claim "false or fraudulent" under 31 U.S.C. § 3729(a)(1)(A).
United States v. Sanford-Brown, Ltd., 788 F.3d 696, 711-712 (2015). Other courts have accepted the theory, but limit its application to cases where defendants fail to disclose violations of expressly designated conditions of payment. E.g., Mikes v. Straus, 274 F.3d 687, 700 (C.A.2 2001). Yet others hold that conditions of payment need not be expressly designated as such to be a basis for False Claims Act liability. E.g., United States v. Science Applications Int'l Corp., 626 F.3d 1257, 1269 (C.A.D.C.2010) (SAIC ).
II
We first hold that the implied false certification theory can, at least in some circumstances, provide a basis for liability. By punishing defendants who submit "false or fraudulent claims," the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions. When, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant's representations misleading with respect to the goods or services provided.
To reach this conclusion, "[w]e start, as always, with the language of the statute." Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 668, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008) (brackets in original; internal quotation marks omitted). The False Claims Act imposes civil liability on "any person who ... knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval." § 3729(a)(1)(A). Congress did not define what makes a claim "false" or "fraudulent." But "[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses." Sekhar v. United States, 570 U.S. ----, ----, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013) (internal quotation marks omitted). And the term "fraudulent" is a paradigmatic example of a statutory term that incorporates the common-law meaning of fraud. See Neder v. United States, 527 U.S. 1, 22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (the term "actionable 'fraud' " is one with "a well-settled meaning at common law").
Because common-law fraud has long encompassed certain misrepresentations by omission, "false or fraudulent claims" include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability. Brief for Petitioner 30-31; Brief for Respondents 22-31; Brief for United States as Amicus Curiae 16-20.
The parties instead dispute whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constitutes such an actionable misrepresentation. Respondents and the Government invoke the common-law rule that, while nondisclosure alone ordinarily is not actionable, "[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter" is actionable. Restatement (Second) of Torts § 529, p. 62 (1976). They contend that every submission of a claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim misleading. Universal Health, on the other hand, argues that submitting a claim involves no representations, and that a different common-law rule thus governs: nondisclosure of legal violations is not actionable absent a special " 'duty ... to exercise reasonable care to disclose the matter in question,' " which it says is lacking in Government contracting. Brief for Petitioner 31 (quoting Restatement (Second) of Torts § 551(1), at 119).
We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths-representations that state the truth only so far as it goes, while omitting critical qualifying information-can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672, 674 (1931) (Cardozo, J.). "The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase." Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his "retirement" was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts § 682, pp. 702-703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80-82, 772 A.2d 494, 496, 497-499 (2001) ).
So too here, by submitting claims for payment using payment codes that corresponded to specific counseling services, Universal Health represented that it had provided individual therapy, family therapy, preventive medication counseling, and other types of treatment. Moreover, Arbour staff members allegedly made further representations in submitting Medicaid reimbursement claims by using National Provider Identification numbers corresponding to specific job titles. And these representations were clearly misleading in context. Anyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably-but wrongly-conclude that the clinic had complied with core Massachusetts Medicaid requirements (1) that a counselor "treating children [is] required to have specialized training and experience in children's services," 130 Code Mass. Regs. § 429.422, and also (2) that, at a minimum, the social worker possesses the prescribed qualifications for the job, § 429.424(C). By using payment and other codes that conveyed this information without disclosing Arbour's many violations of basic staff and licensing requirements for mental health facilities, Universal Health's claims constituted misrepresentations.
Accordingly, we hold that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant's failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.
III
The second question presented is whether, as Universal Health urges, a defendant should face False Claims Act liability only if it fails to disclose the violation of a contractual, statutory, or regulatory provision that the Government expressly designated a condition of payment. We conclude that the Act does not impose this limit on liability. But we also conclude that not every undisclosed violation of an express condition of payment automatically triggers liability. Whether a provision is labeled a condition of payment is relevant to but not dispositive of the materiality inquiry.
A
Nothing in the text of the False Claims Act supports Universal Health's proposed restriction. Section 3729(a)(1)(A) imposes liability on those who present "false or fraudulent claims" but does not limit such claims to misrepresentations about express conditions of payment. See SAIC, 626 F.3d, at 1268 (rejecting any textual basis for an express-designation rule). Nor does the common-law meaning of fraud tether liability to violating an express condition of payment. A statement that misleadingly omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the importance of the qualifying information. Supra, at 1999 - 2001.
The False Claims Act's materiality requirement also does not support Universal Health. Under the Act, the misrepresentation must be material to the other party's course of action. But, as discussed below, see infra, at 2003 - 2004, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Cf. Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011) (materiality cannot rest on "a single fact or occurrence as always determinative" (internal quotation marks omitted)).
Nor does the Act's scienter requirement, § 3729(b)(1)(A), support Universal Health's position. A defendant can have "actual knowledge" that a condition is
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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_issuearea
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
SCHAFFER et al. v. UNITED STATES.
No. 111.
Argued March 24, 1960.
Decided May 16, 1960
Jacob Kossman argued the cause for petitioners in No. 111. With him on the brief was Irving W. Coleman.
Harris B. Steinberg argued the cause and filed a brief for petitioners in No. 122.
John F. Davis argued the causes for the United States. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Julia P. Cooper.
Together with No. 122, Karp et al. v. United States, also on certiorari to the same Court.
Mr. Justice Clark
delivered the opinion of the Court.
Involved here are questions concerning joinder of defendants under Rule 8 (b) of the Federal Rules of Criminal Procedure, and whether shipments of stolen goods in interstate commerce may be aggregated as to value in order to meet the statutory minimum of $5,000, under 18 U. S. C. § 2314.
The indictment charged transportation in interstate commerce of goods known to have been stolen and having a value in excess of $5,000. It contained three substantive counts. Count 1 charged the two Schaffers (petitioners in No. Ill) and the three Stracuzzas (defendants below, who either pleaded guilty or had the charges against them nolle prossed at trial) with transporting stolen ladies’ and children’s wearing apparel from New York to Pennsylvania. Count 2 charged petitioner Marco and the Stracuzzas with a similar movement of stolen goods from New York to West Virginia. Count 3 charged petitioner Karp and the Stracuzzas with like shipments from New York to Massachusetts. The fourth and final count of the indictment charged all of these parties with a conspiracy to commit the substantive offenses charged in the first three counts. The petitioners here were tried on the indictment simultaneously in a single trial. On motion of petitioners for acquittal at the close of the Government’s case, the court dismissed the conspiracy count for failure of proof. This motion was denied, however, as to the substantive counts, the court finding that no prejudice would result from the joint trial. Upon submission of the substantive counts to the jury on a detailed charge, each petitioner was found guilty and thereafter fined and sentenced to prison. The Court of Appeals affirmed the convictions, likewise finding that no prejudice existed by reason of the joint trial. 266 F. 2d 435. We granted certiorari. 361 U. S. 809.
The allegations of the indictment having met the explicit provisions of Rule 8 (b) as to joinder of defendants, we cannot find clearly erroneous the findings of the trial court and the Court of Appeals that no prejudice resulted from the joint trial. As to the requirements of value, we hold that the shipments to a single defendant may be aggregated. The judgments are therefore affirmed.
We first consider the question of joinder of defendants under Rule 8 (b) of the Federal Rules of Criminal Procedure. It is clear that the initial joinder of the petitioners was permissible under that Rule, which allows the joinder of defendants “in the same indictment ... if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” It cannot be denied that the petitioners were so charged in the indictment. The problem remaining is whether, after dismissal of the conspiracy count before submission of the cases to the jury, a severance should have been ordered under Rule 14 of the Federal Rules of Criminal Procedure. This Rule requires a separate trial if “it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trialtogether . . . .” Under the circumstances here, we think there was no such prejudice.
It is admitted that the three Stracuzzas were the common center of the scheme to transport the stolen goods. The four petitioners here participated in some steps of the transactions in the stolen goods, although each was involved with separate interstate shipments. The separate substantive charges of the indictment employed almost identical language and alleged violations of the same criminal statute during the same period and in the same manner. This made proof of the over-all operation of the scheme competent as to all counts. The variations in the proof related to the specific shipments proven against each petitioner. This proof was related to each petitioner separately and proven as to each by different witnesses. It included entirely separate invoices and other exhibits, all of which were first clearly identified as applying only to a specific petitioner and were so received and shown to the jury under painstaking instructions to that effect. In short, the proof was carefully compartmentalized as to each petitioner. The propriety of the joinder prior to the failure of proof of conspiracy was not assailed. When the Government rested, however, the petitioners filed their motion for dismissal and it was sustained as to the conspiracy count. The petitioners then pressed for acquittal on the remaining counts, and the court decided that the evidence was sufficient on the substantive counts. The case was submitted to the jufy on each of these counts, and under a charge which w.as characterized by petitioners’ counsel as being “extremely fair.” This charge meticulously set out separately the evidence as to each of the petitioners and admonished the jury that they were “not to take into consideration any proof against one defendant and apply it by inference or otherwise to any other defendant.”
Petitioners contend that prejudice would nevertheless be implicit in a continuation of the joint trial after dismissal of the conspiracy count. They say that the resulting prejudice could not be cured by any cautionary instructions, and that therefore the trial judge was left with no discretion. Petitioners overlook, however, that the joinder was authorized under Rule 8 (b) and that subsequent severance was controlled by Rule 14, which provides for separate trials where “it appears that a defendant ... is prejudiced ... by such joinder for trial . . . It appears that not only was no prejudice shown, but both the trial court and the Court of Appeals affirmatively found that none was present. We cannot say to the contrary on this record. Nor can we fashion a hard-and-fast formula that, when a conspiracy count fails, joinder is error as a matter of law. We do emphasize, however, that, in such a situation, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. And where, as here, the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice. However, the petitioners here not only failed to show any prejudice that would call Rule 14 into operation but even failed to request a new trial. Instead they relied entirely on their motions for acquittal. Moreover, the judge was acutely aware of the possibility of prejudice and was strict in his charge — not only as to the testimony the jury was not to consider, but also as to that evidence which was available in the consideration of the guilt of each petitioner separately under the respective substantive counts. The terms of Rule 8 (b) having been met and no prejudice under Rule 14 having been shown, there was no misjoinder.
This case is not like United States v. Dietrich, where a single-count indictment against two defendants charged only a single conspiracy offense, or McElroy v. United States, where no count linked all the defendants and all the offenses. Neither is Kotteakos v. United States, on which the petitioners place their chief reliance, apposite. That case turned on the harmless-error rule, and its application to a serious variance between the indictment and the proof. There the Court found “it highly probable that the error had substantial and injurious effect.” 328 U. S., at 776. The dissent agreed that the test of injury resulting from joinder “depends on the special circumstances of each case,” id., at 777; but it reasoned that the possibility was “non-existent” that evidence relating to one defendant would be used to convict another, and declared that the “dangers which petitioners conjure up are abstract ones.” Id., at 778. The harmless-error rule, which was the central issue in Kotteakos, is not even reached in the instant case, since here the joinder was proper under Rule 8 (b) and no error was shown.
Petitioners also contend that, since the individual shipments with which they were connected amounted to less than $5,000 each, the requirements of the statute as to value were not present. However, it appeared at the trial that the total merchandise shipped to each petitioner during the period charged in the several counts was over $5,000, even though each individual shipment was less. The trial court permitted the aggregation of the value of these shipments to meet the statutory limit, and it is this that is claimed to be error. A sensible reading of the statute properly attributes to Congress the view that where the shipments have enough relationship so that they may properly be charged as a single offense, their value may be aggregated. The Act defines “value” in terms of that aggregate. The legislative history makes clear that the value may be computed on a “series of transactions.” It seems plain that the Stracuzzas and each of the petitioners were engaged in a series of transactions, and therefore there is no error on that phase of the case.
Petitioners in No. 122 further contend that certain of the prosecutor’s remarks in his summation to the jury were improper and prejudicial. We agree with the treatment of this issue by the Court of Appeals, and see no need for further elaboration.
The judgments are therefore
Affirmed.
Rule 8 (b) provides:
“Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
18 U. S. C. § 2314 provides in relevant part:
“Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; ...
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
18 U. S. C. §2311 provides so far as material here:
“ 'Value’ means the face, par, or market value, whichever is the greatest, and the aggregate value of all goods, wares, and merchandise, securities, and money referred to in a single indictment shall constitute the value thereof.”
Rule 14 provides:
“If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”
A motion of petitioner Karp for a severance on grounds other than those tendered here was denied. 158 F. Supp. 522.
126 F. 664.
164 U. S. 76 (1896).
328 U. S. 750 (1946).
See note 2, supra.
See note 2, supra.
H. R. Rep. No. 1462, 73d Cong., 2d Sess., p. 2; H. R. Conf. Rep. No. 1599, 73d Cong., 2d Sess., p. 3.
This is not a case like Andrews v. United States, 108 F. 2d 511, where aggregation of shipments to a number of individuals was justified on the theory of a common design among the recipients. The instant case, unlike Andrews, involves aggregation of a number of shipments to a single defendant, and therefore it was quite unnecessary to justify aggregation on the theory of common design.
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:
|
sc_lcdisposition
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
UNITED STATES PATENT AND TRADEMARK OFFICE, et al., Petitioners
v.
BOOKING.COM B. V.
No. 19-46
Supreme Court of the United States.
Argued May 4, 2020
Decided June 30, 2020
Sarah T. Harris, General Counsel, Thomas W. Krause, Solicitor, Christina J. Hieber, Senior Counsel, Molly R. Silfen, Associate Solicitor, United States Patent and Trademark Office, Alexandria, Va., Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Erica L. Ross, Assistant to the Solicitor, General, Mark R. Freeman, Daniel Tenny, Weili J. Shaw, Attorneys, Department of Justice, Washington, D.C., for Petitioners.
David H. Bernstein, Jared I. Kagan, Debevoise & Plimpton LLP, Jonathan E. Moskin, Foley & Lardner LLP, New York, NY, Lisa S. Blatt, Sarah M. Harris, Eden Schiffmann, John B. Swanson, Williams & Connolly LLP, Washington, DC, for Respondent.
Justice GINSBURG delivered the opinion of the Court.
This case concerns eligibility for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought to register the mark "Booking.com." Concluding that "Booking.com" is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration.
A generic name-the name of a class of products or services-is ineligible for federal trademark registration. The word "booking," the parties do not dispute, is generic for hotel-reservation services. "Booking.com" must also be generic, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a generic word and ".com" is generic.
In accord with the first- and second-instance judgments in this case, we reject the PTO's sweeping rule. A term styled "generic.com" is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations uncontested here by the PTO, do not perceive the term "Booking.com" to signify online hotel-reservation services as a class. In circumstances like those this case presents, a "generic.com" term is not generic and can be eligible for federal trademark registration.
I
A
A trademark distinguishes one producer's goods or services from another's. Guarding a trademark against use by others, this Court has explained, "secure[s] to the owner of the mark the goodwill" of her business and "protect[s] the ability of consumers to distinguish among competing producers." Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. , 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582, 198 (1985) ; see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) (trademark statutes aim to "protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get"). Trademark protection has roots in common law and equity. Matal v. Tam , 582 U. S. ----, ----, 137 S.Ct. 1744, 1751, 198 L.Ed.2d 366 (2017). Today, the Lanham Act, enacted in 1946, provides federal statutory protection for trademarks. 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq. We have recognized that federal trademark protection, supplementing state law, "supports the free flow of commerce" and "foster[s] competition." Matal , 582 U. S., at ----, ---- - ----, 137 S.Ct., at 1751-1752, 1752-1753 (internal quotation marks omitted).
The Lanham Act not only arms trademark owners with federal claims for relief; importantly, it establishes a system of federal trademark registration. The owner of a mark on the principal register enjoys "valuable benefits," including a presumption that the mark is valid. Iancu v. Brunetti , 588 U. S. ----, ----, 139 S.Ct. 2294, 2297-2298, 204 L.Ed.2d 714 (2019) ; see §§ 1051, 1052. The supplemental register contains other product and service designations, some of which could one day gain eligibility for the principal register. See § 1091. The supplemental register accords more modest benefits; notably, a listing on that register announces one's use of the designation to others considering a similar mark. See 3 J. McCarthy, Trademarks and Unfair Competition § 19:37 (5th ed. 2019) (hereinafter McCarthy). Even without federal registration, a mark may be eligible for protection against infringement under both the Lanham Act and other sources of law. See Matal , 582 U. S., at ---- - ----, 137 S.Ct., at 1752-1753.
Prime among the conditions for registration, the mark must be one "by which the goods of the applicant may be distinguished from the goods of others." § 1052 ; see § 1091(a) (supplemental register contains "marks capable of distinguishing ... goods or services"). Distinctiveness is often expressed on an increasing scale: Word marks "may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful." Two Pesos, Inc. v. Taco Cabana, Inc. , 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992).
The more distinctive the mark, the more readily it qualifies for the principal register. The most distinctive marks-those that are " 'arbitrary' ('Camel' cigarettes), 'fanciful' ('Kodak' film), or 'suggestive' ('Tide' laundry detergent)"-may be placed on the principal register because they are "inherently distinctive." Wal-Mart Stores, Inc. v. Samara Brothers, Inc. , 529 U.S. 205, 210-211, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). "Descriptive" terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. E.g. , Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. , 718 F.2d 327, 331 (CA9 1983) ("Park 'N Fly" airport parking is descriptive), rev'd on other grounds, 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). The Lanham Act, "liberaliz[ing] the common law," "extended protection to descriptive marks." Qualitex Co. v. Jacobson Products Co. , 514 U.S. 159, 171, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). But to be placed on the principal register, descriptive terms must achieve significance "in the minds of the public" as identifying the applicant's goods or services-a quality called "acquired distinctiveness" or "secondary meaning." Wal-Mart Stores , 529 U.S. at 211, 120 S.Ct. 1339 (internal quotation marks omitted); see § 1052(e), (f). Without secondary meaning, descriptive terms may be eligible only for the supplemental register. § 1091(a).
At the lowest end of the distinctiveness scale is "the generic name for the goods or services." §§ 1127, 1064(3), 1065(4). The name of the good itself (e.g. , "wine") is incapable of "distinguish[ing] [one producer's goods] from the goods of others" and is therefore ineligible for registration. § 1052 ; see § 1091(a). Indeed, generic terms are ordinarily ineligible for protection as trademarks at all. See Restatement (Third) of Unfair Competition § 15, p. 142 (1993); Otokoyama Co. v. Wine of Japan Import, Inc. , 175 F.3d 266, 270 (CA2 1999) ("[E]veryone may use [generic terms] to refer to the goods they designate.").
B
Booking.com is a digital travel company that provides hotel reservations and other services under the brand "Booking.com," which is also the domain name of its website. Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term "Booking.com."
Both a PTO examining attorney and the PTO's Trademark Trial and Appeal Board concluded that the term "Booking.com" is generic for the services at issue and is therefore unregistrable. "Booking," the Board observed, means making travel reservations, and ".com" signifies a commercial website. The Board then ruled that "customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings." App. to Pet. for Cert. 164a, 176a. Alternatively, the Board held that even if "Booking.com" is descriptive, not generic, it is unregistrable because it lacks secondary meaning.
Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not presented to the agency. See § 1071(b). Relying in significant part on Booking.com's new evidence of consumer perception, the District Court concluded that "Booking.com"-unlike "booking"-is not generic. The "consuming public," the court found, "primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving 'booking' available at that domain name." Booking.com B.V. v. Matal , 278 F.Supp.3d 891, 918 (2017). Having determined that "Booking.com" is descriptive, the District Court additionally found that the term has acquired secondary meaning as to hotel-reservation services. For those services, the District Court therefore concluded, Booking.com's marks meet the distinctiveness requirement for registration.
The PTO appealed only the District Court's determination that "Booking.com" is not generic. Finding no error in the District Court's assessment of how consumers perceive the term "Booking.com," the Court of Appeals for the Fourth Circuit affirmed the court of first instance's judgment. In so ruling, the appeals court rejected the PTO's contention that the combination of ".com" with a generic term like "booking" "is necessarily generic." 915 F. 3d 171, 184 (2019). Dissenting in relevant part, Judge Wynn concluded that the District Court mistakenly presumed that "generic.com" terms are usually descriptive, not generic.
We granted certiorari, 589 U. S. ----, 140 S.Ct. 489, 205 L.Ed.2d 290 (2019), and now affirm the Fourth Circuit's decision.
II
Although the parties here disagree about the circumstances in which terms like "Booking.com" rank as generic, several guiding principles are common ground. First, a "generic" term names a "class" of goods or services, rather than any particular feature or exemplification of the class. Brief for Petitioners 4; Brief for Respondent 6; see §§ 1127, 1064(3), 1065(4) (referring to "the generic name for the goods or services"); Park 'N Fly , 469 U.S. at 194, 105 S.Ct. 658 ("A generic term is one that refers to the genus of which the particular product is a species."). Second, for a compound term, the distinctiveness inquiry trains on the term's meaning as a whole, not its parts in isolation. Reply Brief 9; Brief for Respondent 2; see Estate of P. D. Beckwith, Inc. v. Commissioner of Patents , 252 U.S. 538, 545-546, 40 S.Ct. 414, 64 L.Ed. 705 (1920). Third, the relevant meaning of a term is its meaning to consumers. Brief for Petitioners 43-44; Brief for Respondent 2; see Bayer Co. v. United Drug Co. , 272 F. 505, 509 (SDNY 1921) (Hand, J.) ("What do the buyers understand by the word for whose use the parties are contending?"). Eligibility for registration, all agree, turns on the mark's capacity to "distinguis[h]" goods "in commerce." § 1052. Evidencing the Lanham Act's focus on consumer perception, the section governing cancellation of registration provides that "[t]he primary significance of the registered mark to the relevant public ... shall be the test for determining whether the registered mark has become the generic name of goods or services." § 1064(3).
Under these principles, whether "Booking.com" is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if "Booking.com" were generic, we might expect consumers to understand Travelocity-another such service-to be a "Booking.com." We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite "Booking.com" provider.
Consumers do not in fact perceive the term "Booking.com" that way, the courts below determined. The PTO no longer disputes that determination. See Pet. for Cert. I; Brief for Petitioners 17-18 (contending only that a consumer-perception inquiry was unnecessary, not that the lower courts' consumer-perception determination was wrong). That should resolve this case: Because "Booking.com" is not a generic name to consumers, it is not generic.
III
Opposing that conclusion, the PTO urges a nearly per se rule that would render "Booking.com" ineligible for registration regardless of specific evidence of consumer perception. In the PTO's view, which the dissent embraces, when a generic term is combined with a generic top-level domain like ".com," the resulting combination is generic. In other words, every "generic.com" term is generic according to the PTO, absent exceptional circumstances.
The PTO's own past practice appears to reflect no such comprehensive rule. See, e.g. , Trademark Registration No. 3,601,346 ("ART.COM" on principal register for, inter alia , "[o]nline retail store services" offering "art prints, original art, [and] art reproductions"); Trademark Registration No. 2,580,467 ("DATING.COM" on supplemental register for "dating services"). Existing registrations inconsistent with the rule the PTO now advances would be at risk of cancellation if the PTO's current view were to prevail. See § 1064(3). We decline to adopt a rule essentially excluding registration of "generic.com" marks. As explained below, we discern no support for the PTO's current view in trademark law or policy.
A
The PTO urges that the exclusionary rule it advocates follows from a common-law principle, applied in Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co. , 128 U.S. 598, 9 S.Ct. 166, 32 L.Ed. 535 (1888), that a generic corporate designation added to a generic term does not confer trademark eligibility. In Goodyear , a decision predating the Lanham Act, this Court held that "Goodyear Rubber Company" was not "capable of exclusive appropriation." Id. , at 602, 9 S.Ct. 166. Standing alone, the term "Goodyear Rubber" could not serve as a trademark because it referred, in those days, to "well-known classes of goods produced by the process known as Goodyear's invention." Ibid. "[A]ddition of the word 'Company' " supplied no protectable meaning, the Court concluded, because adding "Company" "only indicates that parties have formed an association or partnership to deal in such goods." Ibid. Permitting exclusive rights in "Goodyear Rubber Company" (or "Wine Company, Cotton Company, or Grain Company"), the Court explained, would tread on the right of all persons "to deal in such articles, and to publish the fact to the world." Id. , at 602-603, 9 S.Ct. 166.
"Generic.com," the PTO maintains, is like "Generic Company" and is therefore ineligible for trademark protection, let alone federal registration. According to the PTO, adding ".com" to a generic term-like adding "Company"-"conveys no additional meaning that would distinguish [one provider's] services from those of other providers." Brief for Petitioners 44. The dissent endorses that proposition: "Generic.com" conveys that the generic good or service is offered online "and nothing more." Post , at 2309.
That premise is faulty. A "generic.com" term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so "[a] consumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some specific entity." Brief for Petitioners 40. See also Tr. of Oral Arg. 5 ("Because domain names are one of a kind, a significant portion of the public will always understand a generic '.com' term to refer to a specific business ...."); post , at 2312 - 2313 (the "exclusivity" of "generic.com" terms sets them apart from terms like "Wine, Inc." and "The Wine Company"). Thus, consumers could understand a given "generic.com" term to describe the corresponding website or to identify the website's proprietor. We therefore resist the PTO's position that "generic.com" terms are capable of signifying only an entire class of online goods or services and, hence, are categorically incapable of identifying a source.
The PTO's reliance on Goodyear is flawed in another respect. The PTO understands Goodyear to hold that "Generic Company" terms "are ineligible for trademark protection as a matter of law "-regardless of how "consumers would understand" the term. Brief for Petitioners 38. But, as noted, whether a term is generic depends on its meaning to consumers. Supra , at 2304. That bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception. Instead, Goodyear reflects a more modest principle harmonious with Congress' subsequent enactment: A compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services.
The PTO also invokes the oft-repeated principle that "no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise ..., it cannot deprive competing manufacturers of the product of the right to call an article by its name." Abercrombie & Fitch Co. v. Hunting World, Inc. , 537 F.2d 4, 9 (CA2 1976). That principle presupposes that a generic term is at issue.
But the PTO's only legal basis for deeming "generic.com" terms generic is its mistaken reliance on Goodyear .
While we reject the rule proffered by the PTO that "generic.com" terms are generic names, we do not embrace a rule automatically classifying such terms as nongeneric. Whether any given "generic.com" term is generic, we hold, depends on whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of distinguishing among members of the class.
B
The PTO, echoed by the dissent, post , at 2314 - 2315, objects that protecting "generic.com" terms as trademarks would disserve trademark law's animating policies. We disagree.
The PTO's principal concern is that trademark protection for a term like "Booking.com" would hinder competitors. But the PTO does not assert that others seeking to offer online hotel-reservation services need to call their services "Booking.com." Rather, the PTO fears that trademark protection for "Booking.com" could exclude or inhibit competitors from using the term "booking" or adopting domain names like "ebooking.com" or "hotel-booking.com." Brief for Petitioners 27-28. The PTO's objection, therefore, is not to exclusive use of "Booking.com" as a mark, but to undue control over similar language, i.e. , "booking," that others should remain free to use.
That concern attends any descriptive mark. Responsive to it, trademark law hems in the scope of such marks short of denying trademark protection altogether. Notably, a competitor's use does not infringe a mark unless it is likely to confuse consumers. See §§ 1114(1), 1125(a)(1)(A) ; 4 McCarthy § 23:1.50 (collecting state law). In assessing the likelihood of confusion, courts consider the mark's distinctiveness: "The weaker a mark, the fewer are the junior uses that will trigger a likelihood of consumer confusion." 2 id. , § 11:76. When a mark incorporates generic or highly descriptive components, consumers are less likely to think that other uses of the common element emanate from the mark's owner. Ibid. Similarly, "[i]n a 'crowded' field of look-alike marks" (e.g. , hotel names including the word "grand"), consumers "may have learned to carefully pick out" one mark from another. Id. , § 11:85. And even where some consumer confusion exists, the doctrine known as classic fair use, see id. , § 11:45, protects from liability anyone who uses a descriptive term, "fairly and in good faith" and "otherwise than as a mark," merely to describe her own goods. 15 U.S.C. § 1115(b)(4) ; see KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. , 543 U.S. 111, 122-123, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004).
These doctrines guard against the anticompetitive effects the PTO identifies, ensuring that registration of "Booking.com" would not yield its holder a monopoly on the term "booking." Booking.com concedes that "Booking.com" would be a "weak" mark. Tr. of Oral Arg. 66. See also id. , at 42-43, 55. The mark is descriptive, Booking.com recognizes, making it "harder ... to show a likelihood of confusion." Id. , at 43. Furthermore, because its mark is one of many "similarly worded marks," Booking.com accepts that close variations are unlikely to infringe. Id. , at 66. And Booking.com acknowledges that federal registration of "Booking.com" would not prevent competitors from using the word "booking" to describe their own services. Id. , at 55.
The PTO also doubts that owners of "generic.com" brands need trademark protection in addition to existing competitive advantages. Booking.com, the PTO argues, has already seized a domain name that no other website can use and is easy for consumers to find. Consumers might enter "the word 'booking' in a search engine," the PTO observes, or "proceed directly to 'booking.com' in the expectation that [online hotel-booking] services will be offered at that address." Brief for Petitioners 32. Those competitive advantages, however, do not inevitably disqualify a mark from federal registration. All descriptive marks are intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone directory. The Lanham Act permits registration nonetheless. See § 1052(e), (f). And the PTO fails to explain how the exclusive connection between a domain name and its owner makes the domain name a generic term all should be free to use. That connection makes trademark protection more appropriate, not less. See supra , at 2305 - 2306.
Finally, even if "Booking.com" is generic, the PTO urges, unfair-competition law could prevent others from passing off their services as Booking.com's. Cf. Genesee Brewing Co. v. Stroh Brewing Co. , 124 F.3d 137, 149 (CA2 1997) ; Blinded Veterans Assn. v. Blinded Am. Veterans Foundation , 872 F.2d 1035, 1042-1048 (CADC 1989). But federal trademark registration would offer Booking.com greater protection. See, e.g. , Genesee Brewing , 124 F.3d at 151 (unfair-competition law would oblige competitor at most to "make more of an effort" to reduce confusion, not to cease marketing its product using the disputed term); Matal , 582 U. S., at ----, 137 S.Ct., at 1753 (federal registration confers valuable benefits); Brief for Respondent 26 (expressing intention to seek protections available to trademark owners under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ); Brief for Coalition of .Com Brand Owners as Amici Curiae 14-19 (trademark rights allow mark owners to stop domain-name abuse through private dispute resolution without resorting to litigation). We have no cause to deny Booking.com the same benefits Congress accorded other marks qualifying as nongeneric.
* * *
The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with ".com" yields a generic composite. For the above-stated reasons, we decline a rule of that order, one that would largely disallow registration of "generic.com" terms and open the door to cancellation of scores of currently registered marks. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registration is
Affirmed.
A domain name identifies an address on the Internet. The rightmost component of a domain name-".com" in "Booking.com"-is known as the top-level domain. Domain names are unique; that is, a given domain name is assigned to only one entity at a time.
For simplicity, this opinion uses the term "trademark" to encompass the marks whose registration Booking.com seeks. Although Booking.com uses the marks in connection with services, not goods, rendering the marks "service marks" rather than "trademarks" under 15 U.S.C. § 1127, that distinction is immaterial to the issue before us.
The U. S. Patent and Trademark Office (PTO) suggests that the primary-significance test might not govern outside the context of § 1064(3), which subjects to cancellation marks previously registered that have "become" generic. See Reply Brief 11; Tr. of Oral Arg. 19. To so confine the primary-significance test, however, would upset the understanding, shared by Courts of Appeals and the PTO's own manual for trademark examiners, that the same test governs whether a mark is registrable in the first place. See, e.g. , In re Cordua Restaurants, Inc. , 823 F.3d 594, 599 (CA Fed. 2016) ; Nartron Corp. v. STMicroelectronics, Inc. , 305 F.3d 397, 404 (CA6 2002) ; Genesee Brewing Co. v. Stroh Brewing Co. , 124 F.3d 137, 144 (CA2 1997) ; Trademark Manual of Examining Procedure § 1209.01(c)(i), p. 1200-267 (Oct. 2018), http://tmep.uspto.gov. We need not address today the scope of the primary-significance test's application, for our analysis does not depend on whether one meaning among several is "primary." Sufficient to resolve this case is the undisputed principle that consumer perception demarcates a term's meaning.
The PTO notes only one possible exception: Sometimes adding a generic term to a generic top-level domain results in wordplay (for example, "tennis.net"). That special case, the PTO acknowledges, is not presented here and does not affect our analysis. See Brief for Petitioners 25, n. 6; Tr. of Oral Arg. 25-26.
In passing, the PTO urges us to disregard that a domain name is assigned to only one entity at a time. That fact, the PTO suggests, stems from "a functional characteristic of the Internet and the domain-name system," and functional features cannot receive trademark protection. Brief for Petitioners 32. "[A] product feature is functional, and cannot serve as a trademark," we have held, "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article." TrafFix Devices, Inc. v. Marketing Displays, Inc. , 532 U.S. 23, 32, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001) (internal quotation marks omitted); see § 1052(e) (barring from the principal registrar "any matter that, as a whole, is functional"). This case, however, does not concern trademark protection for a feature of the Internet or the domain-name system; Booking.com lays no claim to the use of unique domain names generally. Nor does the PTO contend that the particular domain name "Booking.com" is essential to the use or purpose of online hotel-reservation services, affects these services' cost or quality, or is otherwise necessary for competitors to use. In any event, we have no occasion to decide the applicability of § 1052(e) 's functionality bar, for the sole ground on which the PTO refused registration, and the sole claim before us, is that "Booking.com" is generic.
Evidence informing that inquiry can include not only consumer surveys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term's meaning. Surveys can be helpful evidence of consumer perception but require care in their design and interpretation. See Brief for Trademark Scholars as Amici Curiae 18-20 (urging that survey respondents may conflate the fact that domain names are exclusive with a conclusion that a given "generic.com" term has achieved secondary meaning). Moreover, difficult questions may be presented when a term has multiple concurrent meanings to consumers or a meaning that has changed over time. See, e.g. , 2 J. McCarthy, Trademarks and Unfair Competition § 12:51 (5th ed. 2019) (discussing terms that are "a generic name to some, a trademark to others"); id. , § 12:49 ("Determining the distinction between generic and trademark usage of a word ... when there are no other sellers of [the good or service] is one of the most difficult areas of trademark law."). Such issues are not here entailed, for the PTO does not contest the lower courts' assessment of consumer perception in this case. See Pet. for Cert. I; Brief for Petitioners 17-18. For the same reason, while the dissent questions the evidence on which the lower courts relied, post , at 2312 - 2313, 2313 - 2314, we have no occasion to reweigh that evidence. Cf. post , at 2309 (SOTOMAYOR, J., concurring).
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_respond2_3_3
|
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 concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
Thomas CARSWELL, Appellant, v. J. J. PARKER, Warden, U. S. Penitentiary and U. S. Parole Board, Appellees.
No. 20568.
United States Court of Appeals District of Columbia Circuit.
Argued March 10, 1967.
Decided July 24, 1967.
Mr. Jim W. Gipple, Washington, D. C. (appointed by this court) for appellant.
Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker, Mrs. Ellen Lee Park, and Mr. E. Grey Lewis, Asst. U. S. Attys., were on the brief, for appellees.
Before Wright, McGowan and Leven-THAL, Circuit Judges.
PER CURIAM:
In 1954, appellant was convicted of federal narcotics offenses and sentenced to imprisonment. He was mandatorily released pursuant to 18 U.S.C. § 4164 having accumulated 1574 days of statutory and extra good time credits. Under the statute, appellant remained under the jurisdiction of the Parole Board, his release being deemed equivalent of a parole, until the expiration of those 1574 days minus the terminal 180-day period. Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965). As a matter of arithmetic computation, and leaving aside any question of interruption or “tolling”, appellant’s 1954 sentence would have been completed on August 29, 1965.
In February, 1965, the Parole Board issued its warrant charging that appellant had violated the terms and conditions of his release and within the week that warrant was executed, i. e., appellant was taken into custody by federal authorities pursuant to the warrant. Following a preliminary interview where appellant “admitted having violated one or more of the conditions of his release,” appellant was sent to a federal penitentiary. Several months later a full revocation hearing was held. Because appellant contended that once disposition of the pending state charges was made “he could prove that the violations alleged against him would also lack substance,” the Board initially reserved decision. In October, 1965, the state charges remaining undetermined, the Board rendered its decision and found that appellant had violated the terms of his release. An order of revocation was entered requiring appellant to serve the remainder of his original sentence although credit against that time was given from the date the violator warrant was executed and appellant retaken into federal custody.
As the case comes to us, a narrow question is posed. It is not contended that the Board failed to afford appellant a full and fair hearing on the underlying facts before entering its revocation order. Hyser v. Reed, 115 U.S. App.D.C. 254, 318 F.2d 225 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963). It is conceded that the Board’s warrant was issued and executed promptly after the facts constituting the violation came to the Board’s attention and at a time when the Board had statutory power to act. Birch v. Anderson, supra. There is no allegation that the Board unreasonably delayed in holding the revocation hearing or that appellant was prejudiced by the three month delay in holding the revocation hearing; and we are not called upon to speculate as to the result of a habeas corpus proceeding instituted during the eight months while appellant was incarcerated pursuant to the warrant but awaiting either hearing or decision on the fact of violation. Rather, as appellant puts it, “the sole question presented by this appeal” is whether under the facts of this case the Parole Board had jurisdiction to enter a revocation order after the expiration of appellant’s 1954 sentence. We hold that the Board had such jurisdiction and affirm.
Congress has comprehensively legislated with respect to mandatory releasees and parole violators. A mandatory releasee, such as appellant, is “deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” 18 U.S.C. § 4164. 18 U.S.C. § 4205 requires that a violator warrant “be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced.” Reading those provisions together, we have held that a warrant charging a mandatory releasee with violating the terms and conditions of his release must be issued prior to the expiration of the maximum term less 180-days. Birch v. Anderson, supra. Here, the warrant was not only issued but also executed prior to that date, and we leave open, as we did in Birch, whether that early a date of execution is obligatory. The argument made to us is that there is a time limit governing not only the warrant but also the proceeding on the warrant, and that revocation of the release or parole comes too late if the date thereof is later than the date on which the prisoner would have completed service of his sentence in the absence of parole or mandatory release.
The pertinent statutory provision, 18 U.S.C. § 4207, reads as follows:
A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.
In view of the plain words of the statute, we reject appellant’s argument that his term expired on August 29, 1965, just as if he had complied with the conditions of his release, and that power to revoke expired on that date. We hold that where, as here, a violator warrant is timely issued and executed, and where there is no oppressive delay or prejudice in holding the revocation hearing and issuing the revocation order, the Board retains jurisdiction to enter such an order even after the day on which the violator’s original sentence would have expired if he had not been released from prison.
Affirmed.
. Citing such cases as Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923), and Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938), the Government contends that either the commission of the parole violation or the action of the Parole Board in issuing its violator warrant interrupts the service of the releasee’s sentence. As will appear, we find it unnecessary to decide the “tolling” issue and hereafter when we refer to the expiration of appellant’s 1954 sentence we assume that service was not interrupted as the Government contends.
. In addition to an arrest by New York state authorities on a narcotics charge, the Parole Board’s warrant alleged that appellant had become involved in narcotics trafficking, departed the district without prior permission, associated with “undesirables”, and gave his probation officer false and misleading information as to his place of residence. It is not contended that these allegations fail properly to charge a violation of the conditions of release.
. 123 U.S.App.D.C. at 159, 358 F.2d at 526.
. Compare United States ex rel. Vance v. Kenton, 252 F.Supp. 344 (D.Conn. 1966); United States ex rel. Hitchcock v. Kenton, 256 F.Supp. 296 (D.Conn. 1966).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
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songer_casetyp2_geniss
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H
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is civil rights - civil rights claims by prisoners and those accused of crimes - cruel and unusual punishment. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Will STONE; Henry Washington; Albert Matias; Freddy Tooks; Jo Ann Sparks, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO; Michael Hennessey, Sheriff; Mayor of the City and County of San Francisco; Department of Public Health of the City and County of San Francisco, Defendants-Appellants.
No. 91-16927.
United States Court of Appeals, Ninth Circuit.
Argued March 10, 1992.
Submitted April 17, 1992.
Decided June 25, 1992.
As Amended July 9, 1992.
Order Amending Opinion and Denying Rehearing and Rehearing En Banc Aug. 25, 1992.
Dennis Aftergut, Deputy City Atty., San Francisco, Cal., for defendants-appellants.
Beth H. Parker, McCutchen, Doyle, Brown & Enerson, San Francisco, Cal., for plaintiff s-appellees.
Before: CHOY, FARRIS, and RYMER, Circuit Judges.
CHOY, Circuit Judge:
The City and County of San Francisco (“the City”) appeals a contempt order against it for its failure to comply with provisions of a consent decree governing population levels at one of the City’s jails. We affirm the entry of the contempt order, but vacate that part of the order allowing the Sheriff to override applicable state laws in conducting early release.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs are pretrial detainees in San Francisco’s jail on the sixth floor of the Hall of Justice (“Jail No. 1”). The plaintiffs filed a class action in 1978 challenging the conditions of their confinement. The primary objectionable condition was the population level at Jail No. 1.
On July 15, 1982, the parties agreed to a consent decree, which the district court entered. The consent decree included a provision that the jail’s housing areas should not regularly house more inmates than the capacity set by the California Board of Corrections.
In June 1985, the plaintiffs moved to hold the City in contempt for violating provisions of the decree, including the provision concerning mandated population levels. In May 1986, the district court ordered the City to comply with the decree’s provisions and appointed a Special Master to investigate, report, and recommend actions the City should take to ensure compliance. As a result of continued noncompliance by the City, the Special Master recommended in March 1987 that the district court impose sanctions when the jail exceeded its population capacity.
The district court held a hearing in April 1987 on the plaintiffs’ contempt motion, but continued the matter until June to give the City an opportunity to present a plan to address the overcrowding problem. In August 1987, the City agreed that if it failed to achieve either the overall capacity level for the entire jail or the individual capacity levels for housing units, the district court could impose monetary sanctions. The City further agreed that the court could grant special powers to the Sheriff to cope with the overcrowding problem, including the power to conduct citation release of inmates and the power to release certain inmates before they had served their entire sentences.
After a prolonged period of compliance, Jail No. 1 became overcrowded again. On November 28, 1987 the district court issued an order to show cause why the City should not be held in contempt. The court held the motion under submission while the City worked to complete a new jail facility in San Bruno (“Jail No. 7”). At a hearing in January 1988, the district court found that the City had made “substantial progress” towards compliance but that Jail No. 1 remained overcrowded. The court gave the City further powers to control the inmate population by allowing the Sheriff to release “all sentenced prisoners within San Francisco County Jail system who have served 90%, 80%, and 70% of their sentences” as necessary to reach the population limits. Moreover, the court expanded the Sheriffs powers by allowing him to release inmates even when such release contravened applicable state laws.
Despite the Sheriff’s liberal use of these powers, overcrowding persisted. The district court held hearings in April, July, and October of 1988 on the pending motion for contempt, but each time it continued the hearing to allow the City the opportunity to meet the population limits. Finally, at a status conference the court ordered the imposition of fines of $300 per inmate per day if the City failed to comply by March 15, 1989.
The City complied by the deadline by shifting inmates to other jails, by making use of Jail No. 7, and by relying on the Sheriffs early-release powers. On June 19, 1989, the court extended the consent decree beyond its seven-year term and denied the pending contempt motion.
The City remained in compliance with the population limits for almost two years until February 19, 1991. After that date the total jail capacity was exceeded on numerous occasions, and the plaintiffs filed a contempt motion on May 30, 1991. At a hearing on July 31, 1991, the district court found that the City had violated the population limits at Jail No. 1. The City requested time to prepare a plan to alleviate the overcrowding problem and to obtain funds to implement the plan. The court postponed a second hearing in September to allow the City further time to prepare. The City submitted its plan to the court on October 7,1991. Jail No. 1 was chronically overcrowded during the intervening period. At the November hearing, the City requested more time to implement its plan to cope with a recent surge in the jail population. The court took the matter under submission.
On December 17, 1991, the district court found the City in contempt because it had not taken “all reasonable steps” to comply with the population limits. The court ordered that the City immediately comply with the consent decree and imposed sanctions of $300 per day per inmate for each day after January 1, 1992 that the City violated the order. The court expanded the Sheriffs powers to reduce population levels by allowing him to release prisoners who had served 60% and then 50% of time served.
On December 26, 1991, the City filed a motion to stay the order or, in the alternative, reconsider the court’s opinion. The court denied both requests on December 30th, but modified the order by requiring that the fines be placed in fund to be controlled and administered by the City and used for programs to reduce Jail No. l’s population levels. On December 31st, this court temporarily stayed the district court’s order pending appeal.
After the parties filed their briefs, we granted the District Attorney for the City leave to file an amicus brief. The District Attorney’s brief urged us to invalidate portions of the district court’s order because it violated principles of federalism. In particular the amicus was concerned about those portions of the court’s orders that allowed the Sheriff to override applicable state laws and state court criminal sentences ordered pursuant to those laws. Because these issues also troubled the panel, we ordered supplemental briefing by the parties.
II. DISCUSSION
A. Jurisdiction
As a general rule, contempt orders against a party to pending proceeding are not considered final under 28 U.S.C. § 1291. United States v. Westinghouse Elec. Corp., 648 F.2d 642, 651 (9th Cir.1981); Hughes v. Sharp, 476 F.2d 975 (9th Cir.1973).
Where the contempt order is a post-judgment order imposing sanctions, however, the order may be final for the purposes of § 1291. Weyerhaeuser Co. v. International Longshoremen’s & Warehousemen’s Union, Local 21, 733 F.2d 645 (9th Cir.1984). A consent decree is considered a final judgment despite the fact that the district court retains jurisdiction over the case. Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 976, 981 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982); cf. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1426 (10th Cir.1990) (order entered three years after consent judgment appealable because underlying controversy was concluded), cert. denied, - U.S. -, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). Thus, the contempt order in this case is a post-judgment order because the parties agreed to the consent decree in 1982.
A post-judgment order imposing sanctions acquires the “operativeness and consequence” required for finality under § 1291. Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983). The plaintiffs claim that the district court’s contempt order is not final because (1) sanctions will not be levied until the City violates the population limits, and (2) the Special Master failed to determine that a bona fide emergency beyond the control of the City exists.
In this case, the sanctions are not speculative. The City has not been required to pay sanctions because of this court’s stay of the district court’s order. The record demonstrates that the City is not in compliance with the population limits and thus would be required to pay the fines if the stay were not in effect. Hennessey Decl. in Support of Mot. for Stay H 8 (Jan. 6,1992). The fact that the exact amount of the fines is undetermined and ongoing does not make the sanctions speculative. See Shuffler, 720 F.2d at 1145; 9 James Wm. Moore et al., Federal Practice § 110.13[4], at 150 (2d ed. 1992) (“if the contempt judgment is entered in a post-final judgment proceeding, it is final and appealable, since there is no other judgment from which the appeal will lie”). Nor does the fact that the sanctions are conditional defeat the contempt order’s finality. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 777 (9th Cir.1983) (sanctions paid but could be refunded with subsequent compliance). This situation is distinct from cases where the contempt order was not final because certain compensatory contempt sanctions had not yet been determined. See American St. Gobain Corp. v. Armstrong Glass Co., 418 F.2d 571 (6th Cir.1969).
As to the argument that the Special Master could excuse noncompliance, there is no evidence that the City would be excused for noncompliance. As the City points out, the emergency clause was meant to cover situations such as mass demonstrations, civil disobedience, or other events causing a large but temporary surge in the jail’s population. Moreover, the City has made no effort to invoke this provision and nothing would require them to do so in order to make the district court’s contempt order final for the purposes of § 1291.
Finally, pragmatic concerns cut in favor of finding the contempt order to be final. The Supreme Court has counseled a practical rather than a technical interpretation of § 1291. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 310-11, 13 L.Ed.2d 199 (1964). The most important concerns in determining § 1291 finality are “the inconvenience of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950). Allowing an appeal of Judge Orrick’s order does not encourage piecemeal litigation. The consent decree is the equivalent of a final judgment; thus ongoing proceedings would not be disrupted by allowing an appeal of the contempt order. Moreover, treating the order as final avoids the danger of unjust delay.
Requiring the City to accrue large sums in sanctions before appealing the order, as the plaintiffs argue, belies common sense. The plaintiffs’ rule would require the City to violate the order, pay the fines into the fund, and then comply with the decree’s population limits to make the amount of fines certain before the City could appeal the contempt order. Under these circumstances, “both policy and common sense would dictate that we assume jurisdiction under the rule of Gillespie....” Smith v. Eggar, 655 F.2d 181, 184-85 (9th Cir.1981). Such a result comports with the realities of prison reform litigation: “[Ijnstitutional reform litigation frequently requires that jurisdiction be retained long after the basic determination of liability. Just as appeal should be available from successive remedial orders, so should appeal be available from a finding of contempt when circumstances make it uncertain whether any further orders will be required.” 15B Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction 2d § 3917, at 397 (1992). This argument is especially persuasive where the contemnor is under the threat of continuing contempt as in this case.
Although the issue was not raised by the parties, we also have jurisdiction to consider the federalism questions raised by the amicus. Issues touching on federalism and comity may be considered sua sponteJ In habeas corpus cases, for example, federal courts may consider sua sponte. whether the defendant has exhausted state remedies, a question touching upon delicate issues of federalism. See Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987) (when state fails to raise nonexhaustion claim, “court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring” further state proceedings); see also Taylor v. Gilmore, 954 F.2d 441 (7th Cir.1992) (applying sua sponte rule that federal courts will not correct errors of state criminal law in collateral proceedings), petition for cert. filed, 60 U.S.L.W. 3783 (U.S. Apr. 27, 1992) (No. 91-1738); Fortino v. Quasar Co., 950 F.2d 389, 391 (7th Cir.1991) (“[cjomity ... accepted reason for an appellate court to consider issues that would otherwise have been deemed waived ... ”); Smith v. Moffett, 947 F.2d 442, 445 (10th Cir.1991) (court of appeals has discretion to raise comity issues sua sponte); Thomas v. Indiana, 910 F.2d 1413, 1415 (7th Cir.1990) (“delicate questions of comity can be raised on the court’s own initiative”). The underlying principle in these cases logically extends to institutional reform litigation, especially where acts of the state legislature and judiciary are involved.
B. The Contempt Order
The district court has “wide latitude in determining whether there has been a contemptuous defense of its order.” Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984); see Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 632, 107 L.Ed.2d 644 (1990) (federal courts have inherent power to enforce their lawful orders through contempt). This court reviews a district court’s contempt finding and imposition of sanctions for abuse of discretion. Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir.1990); In re Grand Jury Proceedings, 914 F.2d 1372, 1373 (9th Cir.1990). Moreover, deference to the district court’s exercise of discretion is heightened where the court has been overseeing a large, public institution for a long period of time. Rufo v. Inmates of Suffolk County Jail, - U.S. -, -, 112 S.Ct. 748, 765, 116 L.Ed.2d 867 (1992) (O’Connor, J., concurring); see also Hutto v. Finney, 437 U.S. 678, 688, 98 S.Ct. 2565, 2572, 57 L.Ed.2d 522 (1978) (substantial deference given to district court’s “years of experience with the problem at hand”). Such deference applies in this case because Judge Orrick has been involved with this case since 1978 and has overseen the implementation of the consent decree for nearly a decade.
This Circuit’s rule with regard to contempt has long been whether the defendants have performed “all reasonable steps within their power to insure compliance” with the court’s orders. Sekaquaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977); see also General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir.1986).
The City argues that its good faith efforts to comply with the provisions of the consent decree should excuse its noncompliance. The City, however, confuses the liability standards for Eighth and Fourteenth Amendment violations with applicable standards of review for contempt orders. Intent is irrelevant to a finding of civil contempt and, therefore, good faith is not a defense. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Donovan I, 716 F.2d at 1240; Toussaint v. McCarthy, 597 F.Supp. 1427, 1430 (N.D.Cal.1984); see also Fortin v. Commissioner of Mass. Dep’t of Pub. Welfare, 692 F.2d 790, 796 (1st Cir.1982).
Recent Supreme Court cases do not change this standard. Wilson v. Seiter, - U.S. -, - - -, 111 S.Ct. 2321, 2326-27, 115 L.Ed.2d 271 (1991) held that plaintiffs must show prison officials showed “deliberate indifference” to prison conditions to establish an Eighth Amendment violation. This standard, however, is inapplicable here because the City has consented to improving the conditions in Jail No. I, and the City never has challenged or moved to modify the consent decree. Nor does the City argue that this appeal should be treated as a challenge to the consent decree.
In Rufo, 112 S.Ct. at 758, the Supreme Court established the standard to modify the terms of a consent decree based on changes in the law or facts and held that Rule 60(b) of the Federal Rules of Civil Procedure applies to such situations. The issue of what standard a court should use to determine whether a party is in contempt was not before the Court. These recent Supreme Court cases do not speak directly to the issue before us and therefore do not disturb long-standing Ninth Circuit law.
The City mischaracterizes the “every reasonable step” rule by asserting that it must consider every option that the court could conceive. The case that established the standard, Sekaquaptewa 544 F.2d at 396, makes no such suggestion. The Sekaquaptewa court held that the contemnors had failed to take “every reasonable step” to comply because there was “little conscientious effort on the part of the appellants to comply with those orders.... ” Id. at 406. More recent cases have held that “technical or inadvertent violations ... will not support a finding of civil contempt.” General Signal Corp., 787 F.2d at 1379.
The district court considered two factors in determining that the City had not taken every reasonable step: (1) the City’s history of noncompliance with the inmate population levels; and, (2) the failure to comply despite the pendency of the contempt motion. Over the nine years that the consent decree has been in effect, Jail No. l’s population level often has been above the prescribed limits. In fact, the jail had been overcrowded for eight months before the district court entered the contempt order. Moreover, the City in the past had failed to comply with other provisions of the consent decree such as those covering staffing, recreation, and medical and health care. Such evidence is highly relevant in finding the City in contempt. See Balla, 869 F.2d at 472 (historic failure to comply relevant in fashioning remedy). The City failed to comply with the consent decree despite the district court threat to impose harsh monetary sanctions. See Toussaint, 597 F.Supp. at 1430 (undisputed delay of eight months in obeying order “sufficient in itself to establish that respondents ... did not act with reasonable dispatch”). Against this background, the district court’s finding that the City had not taken every reasonable step to comply with the consent decree was not an abuse of discretion.
The City argues that the recent upsurge in the jail population beginning in February was unforeseen. There is evidence, however, that the City should have known that the jail population was going to increase. The district court’s factual findings are reviewed for clear error. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689, 66 S.Ct. 1187, 1193, 90 L.Ed. 1515 (1946); In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1364 (9th Cir.1987). In 1989, the National Council on Crime and Delinquency published its report predicting that San Francisco’s jail population would reach 2109 inmates per day by 1992. This figure is very close to the actual prison population today. Moreover, the Special Master predicted the population would be 2055 inmates per day. The only rebuttal offered by the City is hearsay evidence that was not part of the record below. Under these circumstances, the district court did not clearly err in finding that the jail population increases were foreseeable and that the City should have taken further steps to alleviate the overcrowding problem.
The City challenges several of the district court’s factual findings that supported its contempt order. Plaintiffs argue that the City has waived its objections to these findings by not contesting them when they were submitted by the Special Master as a part of his progress reports. We agree. The Special Master’s progress reports were filed in accordance with Rule 53(e)(1) of the Federal Rules of Civil Procedure. The Special Master submitted drafts of the reports to the parties so that they could correct any factual errors. The City has never objected to any of these findings and thus has waived its right to object. See Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.1990); Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th 1983).
Even if the City has not waived its objections, the court's findings are subject to a clear error test. In re Crystal Palace Gambling Hall, Inc., 817 F.2d at 1364. Our review of the district court’s findings does not lead us to conclude that the court committed clear error.
The City argues that it faces a financial crisis that prevents it from funding these programs, but federal courts have repeatedly held that financial constraints do not allow states to deprive persons of their constitutional rights. See Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Lareau v. Manson, 651 F.2d 96, 104 (2d Cir.1981); Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir.1980); Battle v. Anderson, 564 F.2d 388, 396 (10th Cir.1977); Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir.1968).
Finally, the City argues that it has spent thirty million dollars on programs to cope with the overcrowding program. While this demonstrates that the City has made efforts in the past to comply with the consent decree, it does not render the court’s contempt order an abuse of discretion. The City was in violation of the decree for eight months before the court entered the contempt order. On many previous occasions, the population at Jail No. 1 exceeded its limits, and the court threatened the City with sanctions in order to obtain compliance. It had become obvious that the City’s plan to address the overcrowding problem was inadequate and that stronger measures were needed. It does not appear, nor does the City argue, that the sanctions themselves were too onerous as to be an abuse of discretion.
C. Expanded Powers for the Sheriff
The City argued that it received inadequate notice and an opportunity to be heard before the district court gave the Sheriff the power to release inmates after they have served 50% of their sentences. The City therefore argues that this portion of the contempt order must be remanded.
The added powers, however, only expanded the Sheriffs authority to comply with the consent decree. The contempt order did not alter the nature or scope of the population limits established in the consent decree. It therefore did not modify the decree because it did not change the underlying legal relationship between the parties. See Sierra Club v. Marsh, 907 F.2d 210, 212 (1st Cir.1990) (preliminary injunction not modified by subsequent order); cf. Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir.1987) (addition of special master did not modify consent decree).
Independently, the City received adequate notice of the changes. The City originally agreed to the early-release and state-law-override provisions in June 1987. The court expanded the early release provisions from 90% to 70% of time served in January 1988 without objection from the City. Moreover, the Special Master had recommended in his fourteenth progress report that the early-release provisions be expanded further. Finally, the City objected to the expansion of the early-release provisions at this hearing, and the court changed parts of the order based on these objections. Under these circumstances, the City had sufficient notice of the changes and an opportunity to be heard.
D. Federalism
The amicus brief raises questions about the district court’s orders empowering the Sheriff to release prisoners before they have served their entire sentences. The amicus argues that the early-release provisions impinge on the (1) state legislature’s discretion to formulate criminal laws; and, (2) on the state courts’ ability to enforce these laws. These two concerns implicate problems regarding the appropriate limits of federal equitable powers to enforce consent decrees.
The Supreme Court has recognized that “appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976); see also O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Milliken v. Bradley (Milliken I), 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).
Article III extends the federal judicial power “to all Cases, in Law and Equity” that fall with certain categories. Equity jurisdiction “prescribes the body of doctrine which is to guide [federal courts’] decisions and enable them to determine whether in any given instance a suit ... is an appropriate one for the exercise of the extraordinary powers of a court of equity.” Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568, 59 S.Ct. 657, 660, 83 L.Ed. 987 (1939) (citations omitted). A federal court’s decision to exercise its equity powers is based upon the “body of doctrine” that includes federalism concerns. See Alan Effron, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 Colum.L.Rev. 1796, 1798-99 (1988). These considerations include comity and institutional competence. These concerns are highly contextual and must be evaluated on a case-by-case basis.
Justice Black described the comity interest in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971) as “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” He went on to explain that comity
does not mean blind deference to ‘States’ Rights,’ [but it] does represent ... a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.
Id.
As comity relates to the reform of penal institutions, the Court has stated:
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons .... The strong considerations of comity ... require giving the States the first opportunity to correct the errors made in the internal administration of their prison.
Preiser v. Rodriquez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973).
The other concern is institutional competence. Federal courts are not in the business of running state penal institutions. Generally, federal courts properly defer to the policy decisions of prison officials who know best how to run correctional facilities. The Supreme Court has stated:
[T]he problems that arise in the day-today operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security...
Wolfish, 441 U.S. at 547, 99 S.Ct. at 1878. Moreover, in prison reform litigation, federal courts must “craft remedies with extraordinary sensitivity,” Inmates of Occoquan v. Barry, 844 F.2d 828, 844 (D.C.Cir.1988), “tak[ing] into account the interests of state and local authorities in managing their own affairs.” Id. at 841 (citations omitted). “[W]here federal constitutional rights have been traduced, [however,] principles of restraint, including comity, separation of powers and pragmatic caution dissolve....” Duran v. Carruthers, 678 F.Supp. 839, 847 (D.N.M.1988), aff'd, 885 F.2d 1485 (10th Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). Nonetheless, federal courts should always seek to minimize interference with legitimate state activities in tailoring remedies.
1. Standard of Review
A federal court has broad equitable remedial powers. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,
Question: What is the second general issue in the case, other than civil rights - civil rights claims by prisoners and those accused of crimes - cruel and unusual punishment?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_genapel1
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Joseph M. PASTORE, Jr., Arbitrator, National Treasury Employees Union, and James Estrella, Respondents.
No. 82-1716.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 29, 1983.
Decided April 20, 1984.
John M. Rogers, Atty., Dept, of Justice, Washington, D.C., for petitioner. J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, William Kanter and Carlene V. McIntyre, Attys., Dept, of Justice, Washington, D.C., were on the brief, for petitioner. Wendy M. Keats and Howard S. Scher, Attys., Dept, of Justice, Washington, D.C., also entered appearances for petitioner.
Richard S. Edelman, Washington, D.C., for respondents. Robert M. Tobias, John F. Bufe, Lois G. Williams and Sharyn Danch, Washington, D.C., were on the brief, for respondents.
Before BORK and SCALIA, Circuit Judges, and WILLIAMS, Senior District Judge.
Opinion for the Court filed by Circuit Judge SCALIA.
The Hon. David W. Williams, Senior District Judge for the Central District of California, sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).
SCALIA, Circuit Judge:
Petitioner, Director of the Office of Personnel Management, seeks review of an order of arbitrator Joseph M. Pastore, Jr., mitigating the penalty of removal imposed by the Customs Service against James Estrella, a Customs Inspector, for the theft of merchandise entrusted to him. Because we find that the arbitrator erred in making his own assessment of an appropriate penalty rather than merely determining whether the penalty imposed by the agency was arbitrary or capricious; and may also have committed the error of considering the disciplinary factors set forth in the collective bargaining agreement controlling, to the exclusion of other factors permitted by federal personnel law; we grant the petition for review and remand the case to the arbitrator.
I
James Estrella was a Customs Inspector assigned to the Maersk Terminal Wharf, Port Newark, New Jersey. He had been a Customs Inspector for four of his nearly thirty years of government employment. Customs Inspectors are responsible for the administration and enforcement of the laws governing the import and export of merchandise; they operate independently, under only limited general supervision. On August 29, 1980, security officers for Maersk Lines observed Estrella remove from the cargo area a shirt worth approximately $14 at retail and place it in his car. Following an investigation, and Estrella’s response to the charges, the Customs Service issued an order removing Estrella from his position, effective April 9, 1981.
The national collective bargaining agreement negotiated between the United States Customs Service and the National Treasury Employees Union (“NTEU”), Estrella’s collective bargaining representative, contains a grievance procedure and a procedure for submitting unresolved grievances to arbitration. It also contains provisions relating to the discipline of employees and the factors management should weigh in determining an appropriate penalty. Estrella filed a grievance relating to his dismissal on April 20, 1981. When this could not be resolved informally, the NTEU invoked arbitration on his behalf. The parties selected Joseph M. Pastore, Jr., to serve as arbitrator.
Both the Customs Service and the NTEU introduced evidence concerning whether Estrella had taken the shirt, and argument concerning whether the penalty of removal was appropriate. Both parties agreed that the appropriateness of the penalty should be judged by the following question which was derived from the contract’s discipline terms:
Was the removal of the grievant in violation of the contractual requirements for removal only for such cases as will promote the efficiency of the Service; discipline to be progressive in nature; and like penalties for like offenses and, if so, what shall the remedy be?
In re Arbitration between the National Treasury Employees Union and the United States Customs Service, Initial Opinion and Award at 5 (Jan. 26, 1982) (Pas-tore, Arb.) (emphasis added).
The arbitrator found on January 26, 1982, that Estrella had placed the shirt in his car for his own use, and that although Estrella’s actions “did tend to impair the efficiency of the Service,” his removal was not consistent with the contractual policies of progressive discipline and like penalties for like offenses. Id. at 25. The arbitrator also found the action inconsistent with his own interpretation of the agency’s Table of Offenses and Discipline. Id. Accordingly, he mitigated Estrella’s discipline to a thirty-one day suspension.
On March 5, 1982, the Office of Personnel Management (“OPM”) intervened to request the arbitrator to reconsider. OPM argued, as it has in this court, that the arbitrator erred in failing to apply the “arbitrary, capricious, or clearly erroneous” standard in reviewing the agency’s decision. The arbitrator denied OPM’s reconsideration request on May 20, 1982. The opinion on reconsideration again reviewed the evidence supporting the penalty and reaffirmed that the removal sanction was not justified under the contractual tests. In re Arbitration Between the National Treasury Employees Union and the United States Customs Service, Arbitrator’s Response to OPM Request for Reconsideration at 6 (May 20, 1982) (Pastore, Arb.) (hereinafter cited as “Opinion on Reconsideration”).
II
Section 7121 of the civil service law, 5 U.S.C. § 7121(f) (1982), authorizes the Director of the Office of Personnel Management to seek judicial review of the decisions of arbitrators in the same manner as he is empowered by § 7703 to seek review of decisions of the Merit Systems Protection Board (“MSPB”), id. at § 7703. The Director may petition for review of those orders having a “substantial impact” on the operation of the civil service system. The granting of such a petition is at the discretion of the court. Id. at § 7703(d). Our consideration of this case persuades us that the resolution of the issues it presents can have a substantial impact on civil service law, and the case is therefore appropriate for review. We are faced with the question, however, of whether the OPM petition for review is timely.
Section 7703(b) states that a petition for review must be filed within thirty days after the date the petitioner receives notice of the final decision appealed from. As noted above, here OPM did not seek review of the decision in the original arbitration (to which OPM had not been a party), but first intervened and requested the arbitrator to reconsider. This course was followed in reliance upon this court’s language in Devine v. Goodstein, 669 F.2d 736 (D.C.Cir.1981), which suggested that OPM must intervene and seek reconsideration before it can petition for review of an arbitrator’s decision, just as it must do before petitioning for review of an MSPB decision in a case to which it is not a party. See 5 U.S.C. § 7703(d) (1982). The opinion stated that “[bjecause the Director did not intervene in the matter when it was before the arbitrator, he petitioned the arbitrator for reconsideration as required by § 7703(d).” 669 F.2d at 736 (dictum) (emphasis added).
In Devine v. White, 697 F.2d 421 (D.C.Cir.1983), decided after this petition for review had been filed, we addressed the issue of the timing of appeals from the decisions of arbitrators, holding that OPM was neither required nor permitted to ask the arbitrator to reconsider his decision, and that such action would not toll the thirty-day limit. Id. at 433. Applying that holding to this case would make OPM’s June 25, 1982 petition for review of the arbitrator’s January 26, 1982 decision out of time. In Devine v. White, however, we excused OPM’s noncompliance with the time requirements, noting that OPM had acted in reliance upon the “misleading signals” given in Devine v. Goodstein, and that its petition was timely when analyzed against that mistaken standard. 697 F.2d at 433. Since the same circumstances exist here, the argument that this petition is out of time must be rejected.
III
The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. lili (codified as amended in scattered sections of 5 U.S.C. (1982)), established alternative procedures for review of agency actions removing employees. An employee has the option of pursuing the Act’s appellate procedures by taking his appeal to the MSPB, or he may pursue the negotiated grievance procedures contained in the employee’s collective bargaining agreement. 5 U.S.C. § 7121(e)(1) (1982). Estrella initiated the latter procedure by filing a grievance. Grievance procedures, typically culminating in arbitration, and MSPB review differ in many respects. Arbitration is recognized as “faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations.” Devine v. White, supra, 697 F.2d at 435. While undoubtedly hoping to encourage employee selection of the grievance-arbitration process, Congress did not wish that choice to be made on the basis of a predictable difference in substantive outcome. To the contrary, it envisioned a system that would, as between arbitration and MSPB procedures, “promote consistency ... and ... avoid forum shopping.” H.R.Rep. No. 1717, 95th Cong., 2d Sess. 157, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2860, 2891 (discussion of burden of proof provisions). This court has previously noted that substantial disuniformity between the review powers of arbitrators and of the MSPB would frustrate congressional intent. See Local 2578, American Federation of Government Employees v. General Services Administration, 711 F.2d 261, 265 (D.C.Cir.1983).
One of the areas in which uniformity is required is the standard of review applied by the decisionmaker. The statute itself, 5 U.S.C. § 7121(e)(2), is explicit on the point, stating that in those matters appealable to the MSPB “an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable” — the section setting forth the MSPB’s standards of review. In Local 2578, supra, in holding that an arbitrator erred by refusing to review an agency’s choice of penalties, we said: “The inequity of an arbitrator having less authority than the MSPB to deal with the same adverse action is self-evident; an aggrieved employee would be likely to choose the forum providing the greatest independent review of an adverse decision.” 711 F.2d at 265. Local 2578 involved an arbitrator who had declined to review the appropriateness of a penalty entirely. But its reasoning applies as well to the standard of review, and supports the conclusion not only that the arbitrator’s authority can be no less than the MSPB’s but also that it can be no greater. In fact, this corollary has even more substantial support, since it is demanded not only by the congressional intent to prevent outcome-related forum shopping, but also by that provision of the Civil Service Reform Act which prohibits any collective bargaining agreement to “affect the authority of any management official of any agency ... to suspend, remove, reduce in grade or pay, or take other disciplinary action against ... employees.” 5 U.S.C. § 7106(a)(2)(A). That provision would be violated if an agreement could, by providing for arbitration, alter the test that must be met to support such agency action, making it more rigorous than that which the law (and the MSPB) would provide.
It is clear that in the present case the arbitrator applied a different (and more intensive) standard of review than would have been applied by the MSPB. In responding to OPM’s motion for reconsideration he said:
The question presented to the Arbitrator was not, as OPM contends, whether the adverse action of discharge was within the spectrum of available penalties which might be imposed by the Service nor was the question presented to the Arbitrator, directly, one of testing to determine whether the adverse action imposed upon the grievant was “arbitrary and capricious.” Rather, the parties freely solicited the opinion and judgment of the Arbitrator only with respect to the contractual test of whether the removal of James Estrella met each of the three’ conditions of (1) efficiency impairment; (2) like penalty for like offenses; and, (3) progressive discipline as cited in Article 30 of the Agreement.
Opinion on Reconsideration at 6 (emphasis in original). He noted that he had been asked by the parties to “determine whether certain provisions of Article 30 of the Agreement were violated by the Service and ‘if so, what shall the remedy be?’” and that his obligation was “morally, to attempt to decide in a manner which is just to the individuals involved while at the same time maintaining productive union-management peace and harmony.” Id. at 15. This differs from MSPB review in that it constitutes a direct application of the arbitrator’s own judgment regarding the appropriate penalty, rather than according what the Board has described as “appropriate deference to the primary discretion which has been entrusted to agency management, not to the Board,” Douglas v. Veterans Administration, 5 MSPB 313, 328 (1981).
The Board’s role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first instance; such an approach would fail to accord proper deference to the agency’s primary discretion in managing its workforce____ Only if the Board finds that the agency failed to weigh the relevant factors, or that the agency’s judgment clearly exceeded the limits of reasonableness, is it appropriate for the Board then to specify how the agency’s decision should be corrected to bring the penalty within the parameters of reasonableness.
Id. at 332-33. We have approved this standard of review in Parsons v. United States Department of the Air Force, 707 F.2d 1406, 1409 (D.C.Cir.1983).
The arbitrator’s review may also have differed from that which would correctly be applied by the MSPB in that he considered the relevant factors to be those set forth in the NTEU-Customs Service collective bargaining agreement. But if a collective bargaining agreement were able to fix the factors governing discipline, it would “affect the authority of [a] management official of [an] agency ... to ... take disciplinary action,” 5 U.S.C. § 7106(a)(2)(A) — which, as we have said above, the law prohibits. Thus, if the disciplinary factors recited in the NTEU-Customs Service agreement were different from the factors permitted and required by federal personnel law, we would be confronted with the issue whether a provision not properly includable in a collective bargaining agreement must nonetheless be given effect unless challenged directly pursuant to the procedures set forth in the Federal Service Labor-Management Relations title of the Civil Service Reform Act, 5 U.S.C. §§ 7116(a)(5), 7117(c) (1982). We find it unnecessary to reach that issue, however, since the present agreement can be interpreted in a fashion that renders it unquestionably lawful. Although it does not recite all the factors relevant under federal personnel law, those factors it does recite are consistent with them, and the remaining factors can reasonably be considered subsumed within the contract’s residual phrase “any other factors or circumstances bearing upon the incidents or acts involved.” Compare NTEU-Customs Collective Bargaining Agreement, Art. 30 §§ 1-3, reproduced in Initial Opinion and Award at 5-6, with Douglas v. Veterans Administration, supra, 5 MSPB at 329, 332. But although the language of the agreement may be given this breadth, there is nothing to indicate that the arbitrator interpreted it that way. To the extent the arbitrator considered himself, by reason of being bound to the specific factors enumerated in the agreement, unable to take account of all the factors permissible under federal personnel law, he would have been misinterpreting the agreement and thus misapplying the law.
IV
Since the arbitrator applied an erroneous standard of review, we must set aside his determination. OPM has urged us to resolve this matter finally here, on the ground that the agency could not, as a matter of law, be reversed in the circunlstances of this case. We decline to do so, if only because the circumstances may not have been fully developed in the record if the parties (both of whom were applying the contractual test) believed that test to exclude any of the factors relevant under federal personnel law. We think it preferable to remand this proceeding to the arbitrator for reconsideration of the issue of level of discipline under the proper standard and taking into account all appropriate factors, with the ability to receive any further evidence that such reconsideration may render desirable.
The factors relevant under federal personnel law are set forth at some length in Douglas v. Veterans Administration, supra, 5 MSPB at 329-32. (We do not suggest that the arbitrator must explicitly allude to each of them.) The standard which must be met, in the application of those factors, has been variously described by the Board as whether the disciplinary action is “clearly excessive”; “arbitrary, capricious, or unreasonable”; “too harsh and unreasonable under the circumstances”; “unduly harsh, arbitrary, and unreasonable”; “an abuse of agency discretion, or ... [reflecting] an inherent disproportion between the offense and the personnel action, or disparity in treatment”; “unreasonable”; “clearly excessive in proportion to the sustained charges”; “violat[ive of] the principle of like penalties for like offenses, or ... otherwise unreasonable under all the relevant circumstances”; and “within tolerable limits of reasonableness.” Id. at 326-29. The Board is under the impression that this standard differs from the “arbitrary or capricious" standard ordinarily applied by courts to review of administrative action, see 5 U.S.C. § 706(2)(A) (1982). Id. at 327-28. Though that is not entirely clear, see Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., — U.S. -, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (under the arbitrary or capricious test courts determine if there has been “a clear error of judgment”), we need not resolve that detail here. Nor need we resolve the extent, if any, by which the standard diverges from the “just cause” standard normally applied by arbitrators in private-sector grievances. See McKelvey, Discipline and Discharge, in Arbitration in Practice 89-91 (A. Zack ed. 1984). An adequate description of the standard — perhaps as precise as the nature of the matter allows — is set forth in Douglas, supra, and that should suffice for the arbitrator’s guidance. We do not suggest that the arbitrator must conduct an examination of the MSPB case law, in the manner of a common law judge, to assure himself that the outcome of his determination is similar to the MSPB case closest on its facts. But it must be clear, at least, that he is making a conscientious application of the judicially approved MSPB standard. Only in this manner can there be assured that rough uniformity which is necessary in the review of federal agency disciplinary action.
We further note that if the arbitrator finds the agency action unsupportable on this basis, his subsequent task is not to select that discipline which in his independent view is appropriate, but merely to reduce the agency’s to a level that is “within the parameters of reasonableness,” Douglas v. Veterans Administration, supra, 5 MSPB at 333 — that is, to reduce it only so much as is necessary to bring it to a level that can be sustained.
Petition granted.
. The parties to the arbitration were the NTEU and the Customs Service. The Office of Personnel Management did not intervene until after the arbitrator issued his Initial Opinion and Award.
. The Court of Appeals for the Federal Circuit now has exclusive jurisdiction over these appeals. 5 U.S.C. § 7703(b)(1), (d) (1982). At the time this appeal was filed, however, petitions for review could be made to any court of appeals in which general venue requirements were met. 5 U.S.C. § 7703(b)(1), (d) (Supp. V 1981).
. OPM intervened and moved for reconsideration on March 5, 1982, more than thirty days after the arbitrator’s decision of January 26, 1982. The statute, however, measures the time period for appeal from the time OPM "receive[s] notice" of the decision, 5 U.S.C. § 7703(b)(1) (1982), which in this case was February 26, 1982, see Affidavit of Naomi J. Miske, Supplemental Brief for Petitioners at 3a, making the March 5, 1982 motion for reconsideration timely under the Devine v. Goodstein analysis. Similarly, OPM’s June 25, 1982 petition for review of the arbitrator’s May 20, 1982 denial of the reconsideration motion is timely in this sense because the OPM did not receive notice of the arbitrator’s denial until May 28, 1982. See OPM Petition for Review at 3.
. Subsequent to the argument of this appeal, the Court of Appeals for the Federal Circuit has stated that it ”find[s] no support" for the position that "an arbitrator must apply the same standard to mitigation of penalties as that used by the MSPB.” Devine v. Sutermeister, 724 F.2d 1558, 1565 (Fed.Cir.1983). The statement is dictum, since the court specifically said that it "need not decide whether an arbitrator is always or never bound by MSPB precedents," and found “no conflict between the arbitrator's opinion” and the relevant MSPB authority. Id. at 1565. It is not entirely clear whether even the dictum of the opinion means to assert that the arbitrator can ignore so fundamental an element of "MSPB precedent” as the "arbitrary or capricious” standard of review. See id. We recognize that the Court of Appeals for the Federal Circuit now has exclusive jurisdiction over adverse action appeals, see note 2, supra. Nonetheless, since its statement bearing upon this point is not entirely clear and is dictum in any event; since the prior decisions of this court are entirely clear; and since those prior decisions seem to us correct, we see no reason to depart from the law of this circuit.
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_genapel2
|
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 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.
UNITED STATES of America, Plaintiff-Appellee, v. Michael G. THEVIS, Alton Bart Hood, Global Industries, Inc., Anna Jeanette Evans, Defendants-Appellants.
No. 79-5739.
United States Court of Appeals, Fifth Circuit. Unit B
Jan. 11, 1982.
Rehearings Denied March 3, 1982 in Hood and Global Industries, Inc.
Rehearing and Rehearing En Banc Denied March 3, 1962 in Thevis and Evans
Bobby Lee Cook, Summerville, Ga., Wm. W. Taylor, III, Lawrence A. Katz, Washington, D. C., Edward T. M. Garland, Atlanta, Ga., for Thevis.
Joseph Beeler, Miami, Fla., Steven H. Sa-dow, Atlanta, Ga., for Global.
Wm. Ralph Hill, Jr., Lafayette, Ga., for Hood.
Edward E. Strain, III, Cornelia, Ga., for Evans.
Dorothy Y. Kirkley, Craig A. Gillen, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and THOMAS , Senior District Judge.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
The Honorable Daniel H. Thomas, Senior District Judge for the Southern District of Alabama, sitting by designation.
KRAVITCH, Circuit Judge.
Appellants Michael Thevis and Global Industries, Inc. [Global] were convicted by a jury of violating the Racketeer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1962. Thevis and appellants Anna Jeanette Evans and Alton Bart Hood were convicted of conspiracy to violate the civil rights of Roger Dean Underhill under 18 U.S.C. § 241 by preventing him from testifying at trial. All appellants claim that the trial court erred in several evidentiary rulings, chiefly objecting to the trial court’s admission of Underhill’s grand jury testimony as a hearsay exception under Fed.R. Evid. 804(b)(5) and the trial court’s refusal to grant judicial use immunity to defense witness George Thevis. Appellants also claim that the trial court misconstrued RICO and incorrectly charged the jury; and appellants Thevis, Evans and Hood argue that the conspiracy charged under 18 U.S.C. § 241 is not a crime. Finally, appellants Evans and Hood claim their trials should have been severed, and the evidence was insufficient to convict them of the conspiracy. For the reasons stated below, we affirm the convictions of all defendants.
I. Background
The original indictment in this case, filed on June 10, 1978, named Michael G. Thevis, Global Industries, Inc., Fidelity Equipment Leasing Corporation and eight other individuals as defendants. The central allegation was that Thevis and the corporations had conducted an interstate pornography business through a pattern of racketeering activity. Roger Dean Underhill, a principal witness before the grand jury, was named as an unindicted co-conspirator. On October 25, 1979, the grand jury returned a superseding indictment which added a charge that Thevis, Jeanette Evans and Bart Hood conspired to murder Underhill in order to prevent his testimony. Seven of the original defendants were not reindicted and their cases were dismissed. Only Counts One, Two and Ten of the indictment are relevant to this appeal. Count One alleged a substantive RICO violation and Count Two alleged conspiracy to violate RICO. Count Ten, the charge added by the superseding indictment, alleged a conspiracy among Thevis, Evans, and Hood to deprive Underhill of his civil rights in violation of 18 U.S.C. § 241. The trial lasted approximately eight weeks and produced a voluminous record. Our recitation of the facts is therefore limited to only those absolutely essential to this appeal.
In the 1960’s, Michael Thevis organized and controlled a group of corporations whose principal purpose was the profitable distribution of adult books and films. Un-derhill met Thevis in the fall of 1967 and became a Thevis employee. Together, Un-derhill and Thevis developed a profitable peep-show machine that was manufactured and distributed by two Thevis-controlled corporations, Automatic Enterprises and Cinematics. The government offered evidence as to five separate acts of racketeering in the conduct of this peep-show enterprise. These acts were the murders of two competitors in the adult entertainment business, two separate acts of arson against competitors, and the murders of Underhill and a bystander, Isaac Galanti.
The Hanna Murder
Kenneth “Jap” Hanna owned several adult book stores in Atlanta. On November 13, 1970, Thevis called Underhill at 8:30 a. m. and told him to come to work immediately. When Underhill arrived, Thevis stated that he had shot Ken Hanna and left the body in the trunk of Hanna’s car in Thevis’ warehouse. In his haste to dispose of the body, Thevis had left the car keys in Hanna’s pocket, locked in the trunk. Thevis asked Underhill, a trained locksmith, to open the trunk and retrieve the keys. Thevis and Underhill then drove the car containing Hanna’s body to the Atlanta airport parking lot and left it. Afterwards, Underhill took various steps to dispose of any incriminating evidence, including burning the moving pad on which Hanna’s body had lain and replacing several bloody floor boards in the warehouse. In addition, he bought a welding torch outfit and melted the gun, the trunk lock, Hanna’s car keys, some Mexican coins which had been in Hanna’s possession, and a screwdriver. That night Underhill dumped the melted objects and the bloody boards in the Chattahoochee River.
During an interview with the FBI in 1977 Underhill showed agents the spot on the Chattahoochee where he disposed of the melted objects. A government diver found a pan containing melted objects. Analysis of the melted debris revealed two General Motors car keys, some Mexican coins, and a screwdriver on which appeared the letters “R”, “D”, and the beginning of either a capital “U”, “B”, or “W”.
The Mayes Murder
Jimmy Mayes was employed by Thevis and Underhill to build peep shows. Under-hill paid Mayes by giving him a percentage of his stock in the peep-show corporations. When Thevis took away half of Underhill’s and Mayes’ shares, Mayes became enraged and threatened to kill Thevis. In December of 1972, Thevis ordered Underhill to kill Mayes and gave him a gun for that purpose. Underhill had a chance to shoot Mayes one night, but could not pull the trigger. At Thevis’ instruction, Underhill then hired Bill Mahar to do the job. Mahar told Un-derhill that he was going to kill Mayes by putting a pipe bomb in his truck. The bomb went off just before midnight, and literally blew Mayes to pieces.
Thevis was at this time in the hospital due to injuries sustained in a motorcycle accident. On the day of the murder, Un-derhill advised Thevis that the explosion would take place that night. After the explosion, Underhill went to the scene and found a piece of bone and a gold pin. He showed this evidence to Thevis in the hospital; Thevis said that he planned to make the bone into a paperweight. The day after the murder, Thevis instructed his nephew, Mann Chandler, to give Underhill money from Thevis’ safe to pay Mahar.
The Louisville Arson
Nat Bailer, a competitor of Cinematics in the peep-show industry, owned a warehouse in Louisville, Kentucky. Thevis ordered Underhill to go to Louisville and burn the warehouse. On the weekend of April 27, 1976, Underhill drove to Louisville and, with two Thevis employees, Clifford Wilson and Robert Mitchum, set fire to the warehouse. Returning from Louisville, Under-hill called Thevis and reported their success. The former Mrs. Underhill corroborated Underhill’s out of town- trip on April 27, 1970. She also noticed that he was dirty and smokey when he returned and remembered that he wanted to get rid of the clothes he was wearing.
The Fayetteville Arson
In 1972, Thevis operated an adult bookstore in Fayetteville, North Carolina. Herman Womack owned a competing bookstore just one block away. Thevis told Underhill to burn down the competitor. On September 19, 1972, Underhill and Mahar drove to Fayetteville and accomplished the arson by drilling a hole in the roof of the building, pouring gasoline down into the interior, and igniting it with a water pistol used as a flame thrower. Afterwards Thevis gave Underhill $1,500 with which he paid Mahar for the successful arson.
The Underhill-Galanti Murders
Under duress from Thevis, Underhill sold his interest in Cinematics to Thevis in 1971, but remained on Thevis’ payroll (at about $50 per week) until Underhill went to prison in 1974. In 1975 Underhill filed a civil RICO suit against Thevis. While Underhill was in prison, the government sought unsuccessfully to get Underhill’s cooperation in its investigation of Thevis. Underhill was paroled in January 1977 without having reached any specific agreement with the government. Following his parole, Un-derhill was granted immunity and began to cooperate. He gave lengthy recorded statements to the FBI in January 1977 and testified before a federal grand jury in May 1977. In June 1977, Underhill visited Thev-is in the federal prison in Springfield, Missouri. Underhill wore a shoe mike provided by the FBI and recorded his conversation with Thevis. During this conversation Un-derhill told Thevis of his interviews with the FBI and that he had taken and passed a polygraph examination.
On April 28, 1978, Thevis escaped from the New Albany, Indiana, jail where he was confined during the trial of a civil case arising from the Louisville arson. Soon after his escape, he contacted defendants Evans and Hood. Jeanette Evans, a real estate agent in Marietta, Georgia, was a close personal friend of Thevis. Bart Hood, her cousin, was a detective in the Summerville, South Carolina, police department. Evans and Hood assisted Thevis in establishing several aliases, in obtaining an apartment, a VISA credit card, and safe-deposit boxes.
Hood and Evans requested Dennis Bradley, their mutual cousin, to make silencers for a .38 caliber pistol. Evans also inquired about a silencer for a 30.06 rifle. Bradley made two silencers; he mailed one to Hood in Summerville on October 20, 1978, and Hood picked up the second silencer late in the afternoon on October 25, 1978. Hood normally kept a shotgun and a 30.06 rifle in the trunk of his car. On November 5, 1978, he reported the theft of the two guns to the Summerville police but requested that the theft receive no publicity.
Records indicated that Hood was on sick leave from October 9-13, October 16-20 and October 23-25. Hood later told an investigator for credit card companies that he had been in Atlanta with Clarence Feagin (a Thevis alias) on October 25, the date of Underhill’s death. On October 24, 1978, Hood placed a call from the Journey’s End motel in Atlanta to the South Carolina Highway Patrol in order to run a license check on the car being driven by Underhill.
Underhill owned an undeveloped tract of land on Riverside Drive in Atlanta. It had an unpaved driveway, blocked by a gate, which carried visitors quickly out of sight of the main road. At the time of Underhill’s death, this property was for sale. On October 24, Evans went to the office of real estate agent Louis Carter, and asked to see the Fulton County tax maps. Evans first looked for a single-family residence on Riverside Drive, but was unable to locate it because she had the wrong address. Next, Evans asked about the Underhill property, claiming she had a prospective purchaser. Carter considered this request odd, because about a year and a half earlier Carter had contacted Evans about this same property. Evans at that time warned Carter not to have anything to do with the Underhill property, explaining that Underhill was dangerous and “involved with Michael Thevis’ activities.”
On October 21, 1978, Irene Williams, Un-derhill’s fiancee, joined him at an Atlanta motel. Underhill intended to enter the Federal Witness Protection Program shortly, but wanted to sell the Riverside Drive property first. Ms. Williams and Underhill spent two days cleaning up the property. On Wednesday, October 25, Underhill left Williams at approximately 11:30 a. m. to keep an appointment to show the property to Isaac N. Galanti. At about noon, Williams and her two children drove to meet Underhill. When she arrived, she noticed the gate was down and then found the bodies of Underhill and Galanti. She ran across the street to the residence of Henry and Pearl Stumminger.
On Tuesday night, October 24, Henry Stumminger had observed a car or truck bash into the gate on the driveway of the Underhill property. At 11:35 a. m. on October 25, Mrs. Stumminger heard seven or eight “pops,” looked out the window, and saw a black car driving slowly up Riverside Drive. About twenty-five minutes later, a “hysterical” Irene Williams rang her doorbell.
Police and FBI agents were summoned to the scene. They found several shotgun shell casings and spent 30.06 shells. Under-hill had died from one or more shotgun blasts. Galanti had been killed by gunshot wounds to the head and neck. One wound on his neck was attributable to a high-powered rifle, such as a 30.06.
At trial the government presented identification testimony from two eyewitnesses: Rodney Letchworth, who placed Thevis at the scene of the Underhill-Galanti shooting, and Milton McMurray, who placed Thevis, Evans, and Hood together approximately forty-five minutes after the murders. At approximately 11:30 a. m. on October 25, Letchworth, a retired marine pilot, had driven by the Underhill property and noticed a man standing near the gate. He later identified this individual as Thevis. McMurray, a commercial airline pilot, was a neighbor of Evans. At 12:10 p. m. on October 25, and again about 15-20 minutes later, McMurray observed Evans and two men drive past his yard. At trial, he identified the man in the front seat as Thevis, and the man in the back as Hood.
Thevis and Evans were arrested on November 9, 1978 in Bloomfield, Connecticut. A search of their persons and their car yielded firearms, $411,000 in cash, and over one million dollars worth of jewelry. A search of a rental locker in South Windsor, Connecticut disclosed a transcript of interviews the FBI had conducted with Under-hill. Fingerprint analysis revealed over 100 of Thevis’ fingerprints and palm prints throughout the transcript and one of Evans’ fingerprints on an inside page of the transcript.
Immediately after his arrest, Thevis was confined in a federal prison in Danbury, Connecticut. His cellmate, Bernard McCarthy, testified that Thevis had confessed to the murder of Underhill. According to McCarthy, Thevis told him that he had lured Underhill to his property by breaking the fence down, where he “assassinated” Underhill and his “bodyguard” with a shotgun. Thevis explained that he killed Un-derhill because Underhill intended to testify against him, and that Underhill was to enter the marshal’s protection service the following Monday. Thevis boasted to McCarthy that while a fugitive he had travelled incognito in the Atlanta area, once receiving a speeding ticket there. Police later determined, based solely on McCarthy’s information, that Thevis had received such a ticket using the name C. M. Feagin. McCarthy was also able to describe the contents of Thevis’ car at the time Thevis was arrested.
II. Challenges to the Indictment
A. The Interpretation of RICO
Appellants make three separate arguments that the trial court erred in construing RICO. First, they claim that the trial court should have struck the Underhill-Ga-lanti murders from Counts One and Two of the indictment (the RICO charges) because the evidence failed to show that Thevis was “associated with” the enterprise at the time of the murders, and because the murders were not acts through which Thevis conducted the affairs of the enterprise.
This contention is without merit. As this court noted in United States v. Elliott, 571 F.2d 880, 898 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), proof of association with a RICO enterprise may depend wholly on circumstantial evidence. The record in this case contains such evidence. Although Thevis had purportedly sold his interest in the pornography business to his secretary, Laverne Bowden, for $16 million dollars, the note securing the sale was always in default. Thevis, therefore, could foreclose at any time and regain his interest in the business. Rodney Glen Smith, a cellmate of Thevis in 1977, testified that despite the “sale,” Thevis stated he still “controlled” his pornography empire; given the terms of the “sale” and the fact Thevis had contacted Ms. Bowden after his escape from jail in 1978, one could infer that Thevis’ interest in the success of the pornography enterprise continued until the Underhill murder. The murder itself, moreover, neatly advanced Thevis’ interests in the enterprise. The original indictment in the case sought forfeiture of all the assets of Global and Fidelity under RICO forfeiture provisions. The Underhill murder was designed to prevent the government’s key witness from testifying at trial, thus imperiling the government’s entire RICO case and preventing both RICO criminal convictions and forfeiture. The murder, therefore, protected the integrity of the enterprise. Keeping the enterprise together was inextricably tied to furthering its business; hence the Underhill murder was a proper predicate act under § 1962. See United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir. 1981) (predicate acts only required to have sufficient nexus with enterprise to be properly charged under RICO).
Appellants’ second argument is that the term “enterprise” as used in RICO does not include the specific association charged in this case. The RICO definitions section, 18 U.S.C. § 1961, states that an enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or other group of individuals associated in fact although not a legal entity.... ” Appellants contend that because the indictment described the enterprise as “a group of individuals associated in fact with various corporations,” the enterprise alleged did not fall within the literal bounds of the statutory classifications. We reject this claim.
This specific question is one of first impression. We nevertheless are convinced, as was the trial court, United States v. Thevis, 474 F.Supp. 134, 137 (N.D.Ga.1979), that RICO covers the enterprise alleged in this case. Use of the verb “includes” in the statutory definition indicates congressional intent not to limit a RICO enterprise to the specific categories listed; rather, the language “reveals that Congress opted for a far broader definition of the word ‘enterprise’.” United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 2533-34, 69 L.Ed.2d 246 (1981). See United States v. Elliott, supra, at 897 (quoting United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976)). Moreover, the House report accompanying RICO stated that “enterprise” included “associations in fact, as well as legally recognized associative entities. Thus infiltration of any associative group by any individual or group capable of holding a property interest can be reached.” House Rep.No.91-1549, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 4007, 4032 (emphasis added). Although the term “enterprise” may have some limits, the indictment in this case properly alleged an “association in fact” within the scope of § 1961.
Appellants’ final argument is that RICO was not intended to apply to illegitimate enterprises such as the association alleged here. The Supreme Court has now decided this issue in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), holding that RICO applies to both illegitimate and legitimate enterprises.
B. The Charge Under 18 U.S.C. § 241
Count Ten of the indictment charged Thevis, Evans and Hood with violating 18 U.S.C. § 241. That section makes criminal a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . . ” The government alleged that Thevis, Evans and Hood had conspired to injure Underhill in the exercise of his right to testify at trial. Appellants urge that this charge failed to state a crime because the right to testify is not one secured by the Constitution or laws of the United States.
To support this contention, appellants cite United States v. Sanges, 48 F. 78 (5th Cir. 1891), which specifically held that the right to testify was not one secured by the Constitution or laws of the United States. Although ordinarily a panel must adhere to prior decisions of this court, our first duty is to follow the dictates of the United States Supreme Court. We therefore must consider whether the Supreme Court’s decision in In Re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894), overruled Sanges sub silentio.
Quarles involved a conspiracy charge under the predecessor statute to § 241. The victim of the conspiracy was assaulted for reporting a violation of the federal tax laws to a deputy United States Marshal for the Northern District of Georgia. The Court held that the right to report a crime, although not specifically guaranteed by the Constitution, nonetheless “arose out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” 158 U.S. at 535-36,15 S.Ct. at 961. The Court concluded, “It is the duty and right ... of every citizen, to assist in prosecuting, and in securing the punishment of any breach of the peace of the United States." Id. at 535, 15 S.Ct. at 960-961 (emphasis added).
Thus while Quarles did not specifically address the right to testify, the language and reasoning encompass such a right. Testifying at trial both “assists the prosecution” and “secures the punishment” of a crime. Moreover, as the Second Circuit noted in United States v. Pacelli, 491 F.2d 1108, 1113 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) (holding that the right to testify is one guaranteed by federal law):
Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise, the foundations of federal justice would be undermined.
See United States v. Smith, 623 F.2d 627 (9th Cir. 1980); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). See generally, Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc) (interpreting 42 U.S.C. § 1985(2) as providing a cause of action for racial- or class-based interference with testifying at trial). We conclude, therefore, that Quarles implicitly overruled Sanges, and the Supreme Court’s reasoning controls this case. Thus we hold that the right to testify at trial is one secured by the Constitution, and that the conspiracy charged in the indictment properly stated a federal crime.
III. The Evidentiary Rulings
A. Admission of Underhill’s Grand Jury Testimony
Having determined that the charges in the indictment were proper, we proceed to consider appellants’ various evidentiary claims. One of their major contentions is that the trial court erroneously admitted certain transcripts of Underhill’s grand jury testimony and FBI interviews as substantive evidence of guilt on the RICO charges.
The government’s principal witness in the RICO case against Thevis and Global was to be Thevis’ former business ’‘associate, Roger Dean Underhill. Following Underhill’s murder, the government notified the court, and the defendants that pursuant to Fed.R. Evid. 804(b)(5), it intended to offer portions of Underhill’s grand jury testimony and interviews with the FBI as substantive evidence of Thevis’ guilt under Counts One and Two. The court permitted the government to offer its evidence as to Count Ten first, in order to establish that Thevis was responsible for Underhill’s death and provide a basis for the court to rule on the 804(b)(5) issue. The court then admitted specific portions of Underhill’s testimony as containing sufficient “circumstantial guarantees of trustworthiness” as required under Fed.R.Evid. 804(b)(5). The court also held that although admitting the evidence under Rule 804(b)(5) would have violated Thevis’ confrontation rights under the sixth amendment, the government had established by “clear and convincing” evidence that Thevis had caused Underhill’s death; hence, Thevis had waived his confrontation rights. United States v. Thevis, 84 F.R.D. 57 (N.D.Ga.1979).
In contending that the trial court erred in admitting the Underhill evidence, appellants make three arguments. First, appellants claim that the evidence did not have the “circumstantial guarantees of trustworthiness” required to meet Rule 804(b)(5). Appellants also contend that the trial court erred in applying the “clear and convincing” standard to the proof of Thevis’ waiver, arguing instead that the “beyond a reasonable doubt” standard should apply. Finally, appellants argue that even if Thevis waived his confrontation rights, Underhill’s statements were so untrustworthy that their admission violated due process.
The issue of admissibility of a witness’ hearsay statements in the face of a defendant-caused absence of that witness from trial is a question of first impression in this circuit, although other circuits have faced this problem under slightly different circumstances. In United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Circuit confronted a situation in which the defendant had coerced the witness into silence by threatening the witness’ life. The court held that the defendant had waived his confrontation rights and without further explanation stated that such a waiver was a fortiori a waiver of any hearsay objection. In United States v. West, 574 F.2d 1131 (4th Cir. 1978), a key government witness had been murdered prior to trial, but that murder had not been connected to the defendants. Nevertheless, the Fourth Circuit found that the witness’ grand jury testimony met the reliability standards of Rule 804(b)(5) and was sufficiently trustworthy that its admission did not violate the confrontation clause. Finally, United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), the case the trial court primarily relied on here, involved facts similar to those in Balano. After determining that the witness’ grand jury testimony met the standards of Rule 804(b)(5), the Eighth Circuit held that, even assuming admitting the evidence would violate the confrontation clause, the defendant had waived his confrontation rights by intimidating the witness into silence.
We reject both the West and Carlson approaches to this issue, based upon our reading of Rule 804(b)(5) and relevant Supreme Court precedent. As to Carlson, we are convinced that Rule 804(b)(5) does not require finding a confrontation clause waiver once a court has concluded that the proffered evidence has met the reliability standards of the Rule. Both the wording of the Rule and the legislative history indicate that Congress intended evidence to be admitted under 804(b)(5) only if the reliability of the evidence equals or exceeds that of the other exceptions in Rule 804(b). The Supreme Court has held that as to two of the other exceptions, dying declarations and prior testimony where cross-examination has already occurred, the reliability of the admitted evidence satisfies the confrontation clause. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2540-41, 65 L.Ed.2d 597 (1980) (prior testimony); Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) (dying declarations). See also, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965) (citing Mattox for the proposition that the Court has recognized the admissibility of dying declarations despite lack of confrontation). Hence we find that imposing on 804(b)(5) admissibility the additional condition of a waiver of confrontation rights is contrary to the express wording of the Rule, congressional intent, and Supreme Court precedent.
A more fundamental disagreement with both West and Carlson is the conclusion in those cases that corroborated grand jury testimony in fact meets the reliability standards of Rule 804(b)(5). The Senate Judiciary Committee’s report on the Federal Rules of Evidence stated that the 804(b)(5) residual exception was to be used only rarely, in truly exceptional circumstances. Corroborated grand jury testimony which for one reason or another is unavailable at trial is neither rare nor exceptional, and in our opinion its general admission under this theory would constitute a “major revision” of the hearsay rule that, as the Senate Judiciary Committee admonished, is for the legislature, not the judiciary. Grand jury testimony, although given under oath, is not subjected to the vigorous truth testing of cross-examination, as is prior testimony. Grand jury testimony, moreover, is often given under a grant of immunity which might encourage a witness to “embellish” his story. We need not determine whether grand jury testimony ever meets the stringent reliability standards of Rule 804(b)(5), however, because we conclude other grounds support the admission of the Underhill statements. Thus while we agree with the trial court’s application of the “clear and convincing” standard to the admissibility question, we find the evidence admissible on a different basis than did the trial court: adopting the Tenth Circuit’s approach in Balano, we hold that Thevis’ waiver of his right to confrontation in these circumstances also constituted a waiver of any hearsay objection.
1. The Constitutional Waiver
The sixth amendment to the Constitution provides in part that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . . ” All parties to this appeal agree that this right may be waived in a proper case. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Whether a waiver existed in this case requires analyzing two separate questions: whether a defendant’s murder of a witness for the purpose of preventing his testifying at trial constitutes a valid waiver, and what standard of proof the government must bear in proving that waiver.
A waiver of a constitutional right is ordinarily valid only if there is “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of actions by the accused constitute an express waiver of the right to confrontation. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea); United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulations to evidence). The accused, however, may also waive his confrontation rights indirectly, such as by absenting himself from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engaging in contumacious conduct which requires his removal from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
We conclude that a defendant who causes a witness to be unavailable for trial for
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_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".
CHRYSLER MOTORS CORPORATION, Appellant, v. Jerome SCHNEIDERMAN.
No. 90-6054.
United States Court of Appeals, Third Circuit.
Argued July 24, 1991.
Decided Aug. 9, 1991.
George R. Hardin, John F.X. McKeon, III (argued), Amy P.K. Motzenbecker, Bum-gardner, Hardin & Ellis, Springfield, N.J., for appellant.
Edward Gross (argued), Charles H. Newman, Gross & Novak, East Brunswick, N.J., for appellee.
Before SLOYITER, Chief Judge, GREENBERG, Circuit Judge, and McCLURE, District Judge .
Honorable James F. McClure, Jr., United States District Judge for the Middle District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Chrysler Motors Corporation appeals from an order entered in the district court on December 3, 1990, affirming an order of the bankruptcy court disallowing Chrysler’s proof of claim in this Chapter 11 case. The district court had jurisdiction under 28 U.S.C. § 158(a) and we have jurisdiction under 28 U.S.C. § 158(d).
The facts are undisputed. On July 19, 1989, the debtor-appellee, Jerome Schneid-erman, filed a petition under Chapter 11 listing Chrysler as an unsecured creditor with a disputed claim of $519,333.85. Schneiderman sent a copy of this petition to Chrysler’s attorney. The bankruptcy court pursuant to Bankr.R. 3003(c)(3) set November 29, 1990, as the date by which proofs of claims were to be filed. Thereafter Susan K. Struthers, Manager-Special Credit Projects for Chrysler in Michigan, prepared a proof of a nonpriority claim on Chrysler's behalf against Schneiderman for $519,333.85, which she gave to Bernadette Fitzpatrick, the credit clerk, for typing. Fitzpatrick also prepared an envelope for mailing the claim to the clerk of the bankruptcy court at an appropriate address in Trenton, New Jersey. Struthers signed the claim and mailed it to the bankruptcy clerk by regular mail on August 22, 1990, and it was never returned to Chrysler as undelivered. While we do not know whether the claim was ever delivered in Trenton, there is no record in the bankruptcy court that the proof of claim was received and it is not included in the court file.
On March 22, 1990, Schneiderman moved to disallow the claim as it had not been filed with the clerk of the court. When the matter came on before the bankruptcy court, it disallowed the claim in a bench opinion. The court assumed that the proof of claim was mailed but held that “mailing alone does not constitute filing,” as filing requires delivery to the court. It further held, citing In re Vertientes, 845 F.2d 57 (3d Cir.1988), that Chrysler’s neglect in failing to file the claim was not excusable under Bankr.R. 9006(b)(1) and thus it did not permit Chrysler to file a late claim.
Chrysler appealed to the district court which affirmed the order of the bankruptcy court in a comprehensive unreported opinion. The district court indicated that Chrysler advanced three contentions. First, there was a rebuttable presumption that the proof of claim was received and filed, as it had been timely and accurately mailed and, as the presumption had not been rebutted, the claim was validly filed. Second, the time for filing the claim should be enlarged under Bankr.R. 9006(b)(1), as Chrysler’s failure to file the claim was the product of excusable neglect. Third, Schneiderman should be estopped from obtaining an order dismissing the claim.
The district court pointed out that under Bankr.R. 3003(c)(2) and (3) and Bankr.R. 5005(a), Chrysler was obliged to file its proof of claim within the period set by the bankruptcy court with the clerk of that court. While the district court acknowledged that in some circumstances courts other than this court have indicated “that a mailing raises a rebuttable presumption of filing,” it indicated that we have “strictly interpreted the rules requiring the filing of a proof of claim under the bankruptcy code,” citing In re Pigott, 684 F.2d 239, 242-43 (3d Cir.1982); In re Super Electric Prods. Corp., 200 F.2d 790, 793 (3d Cir.1953); and In re Supernit, Inc., 186 F.2d 130, 132-33 (3d Cir.1950). The district court then said “restrictiveness is necessary in order to facilitate the expeditious administration of bankruptcy proceedings so that creditors do not have to wait an interminable length of time before a court determines their voting and distribution rights." Thus, citing Super Electric Products, 200 F.2d at 792, it stated that “the courts in this circuit have not permitted a rebuttable presumption of receipt to arise by the mere act of mailing a proof of claim.” Accordingly, exercising plenary review, the district court concluded that Chrysler failed to meet the filing requirement under Bankr.R. 3003(c)(2), as it did not establish that the clerk received the proof of claim.
The district court further held that the bankruptcy court did not abuse its discretion in refusing to extend the time for filing the claim, as Chrysler could, have ascertained whether the claim had been received and its failure to do so was not beyond its reasonable control, citing, inter alia, In re South Atlantic Financial Corp., 767 F.2d 814, 818 (11th Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1197, 89 L.Ed.2d 311 (1986). Finally it held, citing Tile, Marble, Terrazzo, etc. Int’l Union v. Tile, Marble, Terrazzo, etc. Local 32, 896 F.2d 1404, 1420 n. 28 (3d Cir.1990), and Newark Morning Ledger Co. v. United States, 539 F.2d 929, 932-33 (3d Cir.1976), that it would not consider Chrysler’s equitable estoppel claim as it was first raised on appeal. This appeal followed.
On this appeal Chrysler points out that the Supreme Court held in Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932), “that proof that a letter properly directed was placed in a post office creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed” and it urges that we apply that presumption here. Chrysler further contends it had no obligation physically to place the proof of claim in the appropriate file in the clerks office. Accordingly, inasmuch as the rebuttable presumption that the claim was received was not rebutted, the proof of claim, even if mislaid by the bankruptcy court, must be regarded as properly filed and we should accordingly reverse the district court.
Chrysler further asserts that the district court erred in determining that it had to satisfy the “excusable neglect” standard of Bankr.R. 9006(b) to be granted an extension to file a claim. It points out that Bankr.R. 3003(c)(3) provides that in Chapter 9 and Chapter 11 cases the court fixes, and “for cause shown may extend,” the time within which proofs of claim may be filed. It contrasts this provision with Bankr.R. 3002(c), applicable in Chapter 7 and Chapter 13 cases, which in general provides for proofs of claim to “be filed within 90 days after the first date set for the meeting of creditors.” Chrysler draws the distinction that while there are provisions for extensions in Bankr.R. 3002(c) in particular circumstances, that rule has no provision comparable to the more expansive extension authorization in Bankr.R. 3003(c)(3), and thus, unlike Bankr.R. 3003(c)(3), does not contain its own standard for allowance of extensions to file claims. Therefore, in Chrysler’s view, while the “excusable neglect” standard of Bankr.R. 9006(b)(1) is applicable for extension applications under Bankr.R. 3002(c), a less convincing showing will satisfy the “for cause” standard of Bankr.R. 3003(e)(3), applicable in this Chapter 11 case. It urges that, in any event, it satisfied even the more demanding “excusable neglect” standard.
Finally, Chrysler contends that the district couid; should have entertained its equitable estoppel argument, as that doctrine “is unique in that it can be raised at any time during a proceeding,” and the district court’s “review of a Bankruptcy Court determination is properly very broad in scope.” On the merits, it contends that the estoppel argument is “compelling” because it “at no time [was] notified that its Proof of Claim had been lost in the mails or misfiled. It had no contrary indication, after having performed all its duties, that its position as creditor had been abrogated.” Then when served with the motion to disallow its claim, it “responded promptly” and “has continued to diligently pursue relief.”
We are in full accord with the district court in its rejection of Chrysler’s rebuttable presumption contention for the reasons the court set forth which we described above. We also point out that while Bankr.R. 5005(a) states that proofs of claims “shall be filed with the clerk,” Bankr.R. 9006(e) provides that service of certain papers by mail is deemed complete on mailing. See In re Allegheny Int’l Inc., 93 B.R. 910, 912 (Bankr.W.D.Pa.1988). The reference to the use of the mails for service demonstrates that the framers of the rules knew how to provide for such use to complete a delivery and thus gives rise to an inference that filing within Bankr.R. 5005(a) means actual filing. Clearly, there is a sharp distinction between service of papers among parties and the filing of papers with the court.
We are further informed in our result by Taylor v. Freeland & Kronz, 938 F.2d 420 (3d Cir.1991), a Chapter 7 bankruptcy case involving a claim in a schedule by the debt- or, Davis, that the potential proceeds of a pending discrimination suit were exempt. While the bankruptcy case was proceeding the trustee, Taylor, wrote Davis’s attorneys asserting that the net proceeds of the suit were an asset of the estate. But neither he nor any other person filed a formal objection to the claimed exemption as required by 11 U.S.C. § 522 which, as implemented by Bankr.R. 4003(b), requires an objector to file an objection to a claim of exemption, failing which the claim of exemption is allowed. After the discrimination suit was settled, the proceeds of the settlement were distributed outside of the bankruptcy estate. When Taylor became aware of this, he filed a complaint in the bankruptcy court against Davis and her attorneys to avoid the post-petition transfers and to recover either the property transferred or its value. Taylor was successful in both the bankruptcy and district courts but Davis’s attorneys appealed to this court.
We held that the “statute and rule establish a strict procedure for objections to claimed exemptions,” so that “[tjheir import is clear and they admit of no exception.” Thus, unless an objection is filed within the allowed period, “the property claimed as exempt by the debtor is exempt.” Taylor v. Freeland & Kronz, at 423. Accordingly, we rejected two lines of cases from other circuits which held that an objection is not necessary if the claim is invalid or if the debtor did not have a good faith statutory basis for it. In language particularly germane here, we observed that the time limits of the statute and bankruptcy rule “serve the dual purposes of finality and certainty. In the bankruptcy context, the need for finality and certainty is especially acute.” At 425. While we recognized that our result could grant a debtor an “undeserved windfall” we pointed out that “[t]hat is true of enforcement of all procedural rules_” At 426.
We adhere to the Taylor approach. A mailing in itself is not a filing. If we adopted the rebuttable presumption rule we would greatly complicate bankruptcy administration, as it would be uncertain in many cases whether a scheduled creditor failed to file a proof of claim because of an oversight or because it was abandoning its claim. We also point out that a creditor can protect itself with minimal expense through the use of certified mail with a return receipt requested when filing a proof of claim or, if convenient, can provide for manual filing across the counter in the clerk’s office. Furthermore, a rebuttable presumption rule would easily permit a creditor which failed to file a proof of claim to fabricate evidence, not easily disprovable, that it had been properly mailed.
Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, on which Chrysler relies, certainly does not compel a contrary result. Hagner was a criminal case in which the defendants were charged under a provision of the District of Columbia Criminal Code interdicting the causing of the delivery of mail to defraud. The letter was mailed in Pennsylvania but according to the indictment was to be sent and delivered in the District of Columbia. The defendants were convicted but moved to arrest the judgment on the ground that the indictment did not allege that they specifically caused the letter to be delivered by mail. The motion was overruled and the conviction was affirmed by both the Court of Appeals of the District of Columbia and the Supreme Court. Accordingly, the statement by the Supreme Court that there is a presumption that a properly directed letter placed in a post office reached its destination in usual time and was actually received by the addressee, was made in a completely different context than that in this case. The Court was not concerned with a situation in which a proper mailing was the predicate for a claim that a document was filed as required by a rule of court.
Chrysler’s contention that the district court and bankruptcy court erred in using the “excusable neglect” standard of Bankr.R. 9006(b)(1) need not long detain us, for in In re Vertientes, 845 F.2d 57, we held that in a Chapter 11 case when a creditor seeks an extension under Bankr.R. 3003(c)(3) to file a proof of claim, that standard applies. Indeed, Chrysler acknowledges this point as it urges that while Vertientes “applied the Rule 9006 excusable neglect standard in the facts presented in [that] case[], that construction of the Rules is illogical and should not be followed.” Of course, we will follow Ver-tientes, which we note is in accord with the weight of authority. See 8 Collier on Bankruptcy II 3003.05 at 3003-12 (15th ed. 1990).
On the merits, we find no basis to conclude that there was excusable neglect. Indeed, it is difficult to characterize this case as involving neglect by Chrysler at all. Struthers very carefully prepared the proof of claim and mailed it to the clerk of the court at a proper address long in advance of the bar date. Therefore, this case involves a conscious selection of a delivery procedure which we do not doubt is regularly used to file proofs of claims rather than a neglectful oversight. The conduct here thus may be contrasted with the excusable neglect found in Consolidated Freightways Corp. v. Larson, 827 F.2d 916 (3d Cir.1987), cert. denied, 484 U.S. 1032, 108 S.Ct. 762, 98 L.Ed.2d 775 (1988), in which a notice of appeal was filed in the wrong district because the notice was erroneously prepared. Furthermore, assuming that we could consider the conduct of the postal authorities or the office of the clerk of the bankruptcy court in an excusable neglect analysis, Chrysler’s position would not be helped, as we have no idea what happened to the envelope containing the proof of claim after it was mailed.
In any event, even if we characterized Chrysler’s choice of methods to attempt to file its claim as neglect, the bankruptcy and district courts did not err in not finding it excusable. As we have already indicated, Chrysler could have easily at minimal expense used certified mail, return receipt requested, to file its proof of claim. Moreover, it offers no excuse for its failure to contact the office of the clerk to ascertain whether notice of its sizable claim had been received. If we held that it should be allowed an extension to file its claim simply because it properly and timely mailed it, as a de facto matter we would be adopting the rebuttable presumption rule we have already rejected, albeit with a different label. This would be because an “excusable neglect” extension would simply replace the rebuttable presumption of delivery when a proper mailing was established and the proof of claim was not received.
We will assume without deciding that Chrysler preserved its final argument, that Schneiderman should be estopped from obtaining the order disallowing its claim. However, we reject it on the merits. As Chrysler explains in its brief, the basis for the estoppel is that it was never notified that its proof of claim “had been lost in the mails or misfiled.” Chrysler would thus implicitly place a burden on Schneiderman to make sure that Chrysler had protected itself. We are aware of no support for this remarkable concept. What Chrysler does not allege is that Schneider-man affirmatively led it to believe that the claim had in fact been filed. See In re Vertientes, 845 F.2d at 61.
The order of December 3, 1990, will be affirmed.
. Struthers described her activities in an affidavit which we accept as true. The claim was predicated on guarantees Schneiderman had given on behalf of International Motors Corp.
. Chrysler does not contend that we should adopt a "mailbox rule” that filing is complete on mailing. See In re Allegheny Int'l Inc., 93 B.R. 910 (Bankr.W.D.Pa.1988) (rejecting the “mailbox rule” as to proofs of claims).
. Inasmuch as the rebuttable presumption contention raises an issue of law, we are exercising plenary review on this issue.
. We do not in any way suggest by this observation that we question Struthers’s integrity.
. We also point out that in Hagner the record before the Supreme Court was limited and it therefore assumed "that every essential element of the offense was sufficiently proved, and that the question as to the delivery of the letter was submitted under appropriate instructions to the jury.” It also limited its reliance on the presumption of delivery by its suggestion that the indictment might have been open to some form of challenge at an earlier stage of the case. 285 U.S. at 433, 52 S.Ct. at 420.
.While we are exercising plenary review to the extent that we review the order of the district court, we are effectively using the abuse of discretion standard on this point, as what is actually involved is a review of the order of the bankruptcy court.
. We will assume that .our standard of review on this point is plenary. While it in fact may be deferential, this assumption cannot prejudice Chrysler. See United States v. Moscony, 927 F.2d 742, 748 n. 5 (3d Cir.1991).
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_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".
FIRST NATIONAL CITY BANK OF NEW YORK, Defendant, Appellant, v. Francisco GONZALEZ Martinez, Plaintiff, Appellee.
No. 5749.
United States Court of Appeals First Circuit.
Heard Feb. 13, 1961.
Decided Aug. 25, 1961.
Wallace Gonzalez Oliver, New York City, with whom Edward M. Borges and McConnell, Valdes & Kelley, San Juan, P. R., were on brief, for appellant.
A. Rivera Valdivieso, Hato Rey, P. R., with whom Raul A. Feliciano, Rio Piedras, P. R., was on brief, for appellee.
Before WOODBURY, Chief Judge and MAGRUDER and HARTIGAN, Circuit Judges.
Sitting by designation,
MAGRUDER, Circuit Judge.
The complaint in this case was originally filed in the Superior Court of Puerto Rico, San Juan Part, on November 30, 1959. It was timely removed to the federal district' court in San Juan, which had jurisdiction of the cause of action pursuant to 12 U.S.C.A. § 632.
On June 27, 1958, plaintiff borrowed $384.00 from the defendant First National City Bank of New York at its branch office in Santurce in the Municipality of San Juan, Puerto Rico. He signed a note in which he agreed to repay the loan in twelve monthly installments of $32.00 each, payable on the 27th of each month. Plaintiff’s wife, Alfredo Caceres, and Felix Tollinche signed as co-makers on the note. Prior to February, 1959, the plaintiff, except in one instance, had not made the payments by the due date. The bank did not notify the co-makers of those delays, however, but it had assessed “late charges” of $1.60 for the August, 1958, payment overdue. The February, 1959, payment was not made when due, and on March 24, 1959, defendant wrote to the plaintiff requesting payment and sent copies of the letter to the co-makers. In early April plaintiff purchased a postal money order for $65.60 which he mailed to the defendant in payment of both the February and March installments, as well as payment for the “late charges” assessed for the delinquency of February. This postal money order was collected by the bank, but because of an error in the posting it was not credited to the plaintiff’s account and the bank continued to press for payment. The plaintiff as well as the co-makers were approached. According to one of the latter, Alfredo Caceres, “the National City Bank officers * * * called to my office a few times. They wrote me a few letters, and they sent people around to my house.” The plaintiff showed the stub of the postal money order to the officers of the bank, but they did not believe what he said and requested that he produce a copy of the money order. It was necessary for him to send to Washington for the copy, which eventually arrived in San Juan at the beginning of September. But in the meantime the plaintiff, on July 3, 1959, had paid all that the defendant demanded and closed out the loan. When the bank officials saw the copy of the money order, they repaid plaintiff the sum of $65.60, and the surcharges they had collected.
Alfredo Caceres testified that before the incident with the bank he had intended to make the plaintiff the general manager of a branch of his business which he was opening in St. Thomas, but that he delayed this venture some three months awaiting the outcome of the trouble with the bank. In addition, there was testimony to the effect that persons other than the co-makers had known of the plaintiff’s difficulties with the bank. The district court found as a fact that plaintiff “undoubtedly suffered damage to his reputation and he also suffered mental anguish which were proximately caused by defendant’s acts and conduct. Plaintiff’s damages on said account are reasonably worth the amount of $2,000.00.” The court did not find that the plaintiff had suffered any pecuniary loss because of the three-month delay in opening the St. Thomas place of business. The court also found as a fact that defendant’s failure to post the credit to the plaintiff’s account was negligence on its part. As conclusions of law, the court stated that plaintiff was entitled to a judgment in the amount of $2,000, for the reason that defendant was liable “for the damages suffered by plaintiff and caused by the former’s acts and omissions, pursuant to Title 31 LPRA, Sec. 5141.”
The jurisdiction of the federal district court for Puerto Rico was rested upon 12 U.S.C.A. § 632, and although Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, may not be applicable, still it is clear that the federal district court in Puerto Rico must apply to this ease the law of Puerto Rico as declared by its insular courts, unless the law so declared is “inescapably wrong” or “patently erroneous.” See De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 459, 64 S.Ct. 1121, 88 L.Ed. 1384.
Puerto Rico had on its books § 1802 of its Civil Code of 1930, now found in 31 L.P.R.A. § 5141, the generalization which read as follows: “A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.” The Supreme Cout of Puerto Rico has given great deference to this generalization in the Code. For instance, in Rivera v. Central Pasto Viejo, Inc., 44 P.R.R. 236 (1932), the court said, at p. 266:
“The provisions of our Civil Code are the source of our law with respect to negligence. We are not bound by the common law, nor by the construction given by the courts in the various States of the Union to statutes in force in their respective jurisdictions. It is natural that we should be governed by our own statutes and that we should adopt such principles as arise from their construction and which are in harmony with our civil law. The American jurisprudence is varied and abundant, and constitutes a source of useful information for the judicial mind.”
See also Diaz v. San Juan Light & Transit Co., 17 P.R.R. 64, 69 (1911).
Appellant’s main contention seems to be that the trial court erred in failing to treat the cause of action as one for libel and slander under 32 L.P.R.A. § 3141 et seq., and that, so considered, the defamatory statements were conditionally privileged and malice was not to be presumed. We do not think that this point is well taken, since the Supreme Court of Puerto Rico has many times held that § 1802 of its Civil Code not only goes beyond the common law of negligence but also may overlap other statutory provisions. See, for example, Rivera v. Fagot, 79 P.R.R. 524 (1956); Hernandez v. Fournier, 80 P.R.R. 94 (1957). Also, in construing § 1802 literally, the Supreme Court of Puerto Rico has held that “[t]he right to claim damages in ex delicto actions, for humiliations and mental sufferings, independent of the existence of physical damages, has been definitely established' in this jurisdiction.” Muriel v. Suazo, 72 P.R.R. 348, 352 (1951). To the same effect, see Rios v. National City Bank, 51 P.R.R. 473 (1937); Rivera v. Rossi, 64 P.R.R. 683 (1945). In the latter case, at p. 689 the court said:
“Section 1802, which in this jurisdiction is the source of the action for damages caused by fault or negligence, Mendez v. Serracante, 53 P.R.R. 807, makes no distinction between physical damages and damages to the feelings. It is inferred from its language and it is so held by the decisions and the text writers, that in order to be compensable the damage must be the natural consequence of the fault or negligence of the person from whom recovery is sought or of the persons for whom the latter is responsible. Civil Code, § 1803. In those cases where we have awarded compensation for mental suffering where physical injury also has been caused, the damages to the feelings have been the natural consequence of the physical injury, and since the latter is in turn the natural consequence of the fault or negligence of the defendant or of the person for whom he is responsible, the award for mental suffering and anguish in those cases has been but the logical application of the general principle of law involved in § 1802. But, must the mental suffering and anguish be subordinated to the existence of a physical injury? If the damages to the feelings have really existed and they are the natural consequence of the wrongful or negligent act of the defendant, or as it is said in the common law, if the proximate cause of the injury is the fault or negligence of the defendant, what logical reason, what principle of justice can prevent compensation? Indeed, is not a humiliation, such as the one suffered by the plaintiff in this case, more important than many physical injuries for which compensation is usually and unhesitatingly awarded ? And if § 1802 makes no distinction between the damages to the feelings and the physical damages for the purpose of compensation, why should we make any distinction?”.
Certainly, mental or emotional disturbances are compensable by more than nominal damages, as was held in Rios v. National City Bank, supra, 51 P.R.R. 473 (1937), and Maymi v. Banco Popular de Puerto Rico, 63 P.R.R. 515 (1944).
Although $2,000 damages was perhaps more than we would have granted had we been the trier of the facts, nevertheless we are not prepared to say that the district court was “clearly erroneous” in its finding of damages in that amount. We do not forget that in Rios v. National City Bank, supra, 51 P.R.R. 473 (1937), the appellate court reduced the damages from $2,000, as found by the district judge, to $250. But in that case the court noted that, upon discovery of its error, the bank did all it could to mitigate damages and that in fact the plaintiff’s good name and reputation had not been adversely affected.
A judgment will be entered affirming the judgment of the District Court.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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sc_respondent
|
027
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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.
WASHINGTON, Petitioner
v.
UNITED STATES, et al.
No. 17-269.
Supreme Court of the United States
June 11, 2018.
Robert W. Ferguson, Attorney General, Noah G. Purcell, Solicitor General, Fronda C. Woods, Assistant Attorney General, Jay D. Geck, Anne E. Egeler, Deputy Solicitors General, Olympia, WA, for Petitioner.
Kevin P. Martin, Tucker DeVoe, Goodwin Procter LLP, Boston, MA, William M. Jay, Brian T. Burgess, Jaime A. Santos, Goodwin Procter LLP, Washington, DC, for Tribal Respondents.
Riyaz A. Kanji, Kanji & Katzen, PLLC, Ann Arbor, MI, John C. Sledd, Jane G. Steadman, Kanji & Katzen, PLLC, Seattle, WA, for Respondents the Hoh Tribe, the Jamestown, S'Klallam Tribe, the Lower Elwha Klallam Tribe, the Nisqually Tribe, the Port Gamble S'Klallam, Tribe, the Sauk-Suiattle Tribe, the Squaxin Island Tribe, the Stillaguamish Tribe, and the Suquamish Tribe.
Mary Neil, Office of The Reservation Attorney, Lummi Nation, Bellingham, WA, James R. Sigel, Morrison & Foerster LLP, San Francisco, CA, Deanne E. Maynard, Brian R. Matsui, Morrison & Foerster LLP, Washington, DC, for Respondent the Lummi Nation.
Thomas Zeilman, Law Offices of Thomas Zeilman, Yakima, WA, for Respondent the Confederated Tribes, and Bands of the Yakama Nation.
Craig Dorsay, Lea Ann Easton, Dorsay & Easton, LLP, Portland, OR, for Respondent the Hoh Tribe.
Brian Gruber, Ziontz Chestnut, Seattle, WA, for Respondent the Makah Tribe.
Alan C. Stay, Ann E. Tweedy, Muckleshoot Indian Tribe, Office of The Tribal Attorney, Auburn, WA, for Respondent the Muckleshoot Tribe.
Maryanne Mohan, Office of The Tribal Attorney, Nisqually Indian Tribe, Olympia, WA, for Respondent the Nisqually Tribe.
Lauren Rasmussen, Law Offices of Lauren P. Rasmussen, PLLC, Seattle, WA, for Respondents the Jamestown S'Klallam Tribe and the Port Gamble, S'Klallam Tribe.
Steve Suagee, Sam Hough, Tribal Attorneys' Office, Lower Elwha, Klallam Tribe, Port Angeles, WA, for Respondent the Lower Elwha, Klallam Tribe.
Connie Sue Martin, Schwabe, Williamson & Wyatt, Seattle, WA, for Respondent the Nooksack Tribe.
Eric Nielsen, Nielsen, Broman & Koch, PLLC, Seattle, WA, for Respondent the Quinault Indian Nation.
Earle David Lees, Tribal Attorney, Skokomish Indian Tribe, Skokomish Nation, WA, for Respondent the Skokomish Tribe.
Kevin R. Lyon, Squaxin Island, Legal Department, Shelton, WA, for Respondent the Squaxin Island Tribe.
Samuel J. Stiltner, John Howard Bell, Tribal Attorneys, Puyallup Indian Tribe, Tacoma, WA, Harry R. Sachse, Sonosky, Chambers, Sachse, Endreson & Perry LLP, Washington, DC, for Respondent the Puyallup Tribe.
Timothy J. Filer, Foster Pepper PLLC, Seattle, WA, for Respondent the Quileute Tribe.
Scott Owen Mannakee, Tribal Attorney, Stillaguamish Tribe of Indians, Arlington, WA, for Respondent the Stillaguamish Tribe of Indians.
David Hawkins, Office of The Tribal Attorney, Upper Skagit Indian Tribe, Sedro Wooley, WA, for respondent the Upper Skagit Indian Tribe.
Arthur W. Harrigan, Jr., Tyler L. Farmer, Kristin Ballinger, Danielson Harrigan, Leyh & Tollefson, LLP, Seattle, WA, for respondent the Upper Skagit Tribe.
James Rittenhouse Bellis, Suquamish Tribe Legal Department, Suquamish Tribe, Suquamish, WA, for Respondent the Suquamish Tribe.
Emily Hutchinson Haley, Tribal Attorney, Swinomish Indian Tribal Community, La Conner, WA, for Respondent the Swinomish Indian Tribal Community.
Mason D. Morisset, Morisset, Schlosser, Jozwiak & Somerville, Seattle, WA, for Respondent the Tulalip Tribes.
Noel J. Francisco, Solicitor General, Jeffrey H. Wood, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Assistant Attorney General, Allon Kedem, Assistant to the Solicitor General, William B. Lazarus, Vanessa Boyd Willard, Evelyn S. Ying, Attorneys, Department of Justice, Washington, DC, for the United States.
PER CURIAM.
The judgment is affirmed by an equally divided Court.
Justice KENNEDY took no part in the decision of this case.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MT. VERNON TELEPHONE CORP., Respondent.
No. 16236.
United States Court of Appeals Sixth Circuit.
Dec. 2, 1965.
Celebrezze, Circuit Judge, dissented.
Nancy M. Sherman, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Julius Rosenbaum, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.
Eldred A. Gentry, Cleveland, Ohio, Stanley, Smoyer & Schwartz, Cleveland, Ohio, on brief, for respondent.
Before WEICK, Chief Judge, CELE-BREZZE, Circuit Judge, and CECIL, Senior Circuit Judge.
WEICK, Chief Judge.
The National Labor Relations Board filed a petition in this Court for enforcement of its cease and desist order against respondent, Mt. Vernon Telephone Corp. The Board had found that respondent violated section 8(a) (3) and (1) of the National Labor Relations Act by discriminatorily demoting and laying off its employee, Robert Sanford, and ordered it to reinstate him with back pay. 29 U.S.C. § 158(a) (1), (a) (3). The Board’s decision and order are reported at 147 N. L. R. B. 125.
Respondent is an Ohio corporation engaged in supplying telephone service to local subscribers. Sanford had been employed by respondent in a number of different jobs from October, 1948 to August, 1963. This employment had been continuous except for two years’ military service and the layoff on January 15, 1963 to July 15, 1963. Sanford had been active in a union campaign to organize respondent’s employees. On June 29, 1962 the union was elected exclusive bargaining representative and certified by the Board on August 8, 1962. Thereafter, on May 1, 1963, respondent and the union entered into a collective bargaining agreement to run for one year and to continue from year to year unless terminated by either party upon notice.
After holding various jobs with respondent as instrument repairman, switchman, cable helper, and lineman, Sanford was transferred to switchman on May 1, 1961, and as such he worked in the switchroom maintaining central office equipment. On July 25, 1962 Sanford was transferred back to cable helper, from which position he was laid off on January 15, 1963. On July 15, 1963 he was recalled as switchman pursuant to the union contract to work during vacation periods and he was again laid off on August 15, 1963. He has not since been recalled.
The Board found that Sanford’s transfer from switchman to cable helper was discriminatorily motivated because of his union activities. Although the Board found a basis for the layoff from cable helper because of the introduction of labor saving equipment to that job, it reasoned that the demotion from switch-man was an unfair labor practice. The Board did not claim that respondent’s seniority policy was discriminatorily applied. The Board also found that Sanford’s layoff on August 15, 1963, after recall, was wrongful in that it was motivated by the prior discrimination and Sanford’s nomination to the office of union president on August 8, 1963.
The Board based its finding that the demotion from switchman to cable helper was discriminatorily motivated on several factors. The Board referred to alleged coercive statements of management, to show management’s preoccupation with union activities. The subject of union organizing was brought up by Sanford and discussed with Personnel Director Coleman. About the same time Manager Lahm inquired of employee Young if he had been contacted about union membership or if other employees had signed union cards. Later Superintendent Smith asked Sanford why “you guys upstairs” wanted the union, to which Sanford responded by inquiring as to Smith’s basis for the question, and Smith replied, “Oh, we know.” At about the same time District Manager Tanner expressed the hope to employees Blubaugh and Sanford that the union would not prevail. The National Labor Relations Act specifically provides that the expression of any views shall not be evidence of an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit. 29 U.S.C. § 158(c). There is nothing in the above statements to indicate that they had the effect of coercion, threat of reprisal, or promise of benefit. They were made in the exercise of free speech and as such have no evidentiary value of an unfair labor practice. N. L. R. B. v. Tennessee Coach Co., 191 F.2d 546 (6th Cir. 1951).
Employee Blubaugh testified in the hearing before the Trial Examiner that respondent’s President Quatman “said that within a year’s time that he would be rid of the union and everbody else that had anything to do with it.” Although Quatman denied making the statement, the Trial Examiner credited Blubaugh “on the basis of demeanor.” The Board adopted the Examiner’s findings.
It is clear that the crediting of a witness by a Trial Examiner is entitled to great weight by a reviewing court, but it is also true that the crediting is not conclusive on the court. The court may choose not to be bound if it believes that the crediting was improper. As stated by this Court in N. L. R. B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421, 426 (6th Cir. 1964):
“In a proper case this Court may decline to follow the action of an examiner in crediting and discrediting testimony, even though the Board has adopted the Examiner’s findings.”.
Here the Trial Examiner credited the testimony of a prejudiced witness. When Quatman was alleged to have made this statement to Blubaugh they were alone in a meeting to discuss whether Blubaugh’s suspension for molesting a female employee and for intoxication, should be made permanent by dismissal. In crediting Blubaugh the Trial Examiner did not mention this incident. In addition, the Examiner apparently did not credit Blubaugh on the other aspects of his testimony, but did on this one aspect. The Examiner did credit Quatman’s testimony on some other matters, but discredited his denial of making the statement in question.
The Examiner also credited employee Young over Manager Lahm relative to Young’s testimony that Lahm stated that the Company would accelerate introduction of labor saving equipment because of the advent of the union. Lahm denied making the statement, and the Examiner credited Young because he was a reluctant witness for the Board under subpoena. This seems to be a thin ground since all of the Board’s witnesses were under subpoenas. Following this to its logical conclusion, all of the subpoenaed witnesses should be credited irrespective of their testimony. The General Counsel did not ask to cross-examine Young as a hostile witness. In any event, this statement, if true, is not entitled to much weight because where an employer makes a change which results in displacing employees for sound economic reasons, that action is not wrongful even though accelerated by union activity. N. L. R. B. v. Rapid Bindery, Inc., 293 F.2d 170, 174 (2nd Cir. 1961).
The Board found that respondent had no business motives for demoting and laying off Sanford. Rather, it concluded that respondent’s action was wrongfully motivated by Sanford’s union activity. Its decision is based entirely on inferences. However, the entire record must be reviewed and overbearing evidence calling for contrary inferences, must be considered. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
There is substantial evidence to support respondent’s position that the fourth man was not needed in the switch-room, and that operations were effectively carried on with only three men. With four men in the switchroom they were idle at times. Sanford’s job was never refilled since his transfer to cable helper on July 25,1962. This is strong evidence of the economic justification for his transfer. In addition, less overtime was worked in the switchroom with three employees following Sanford’s demotion, than with four employees prior to the reduction. The equipment in the switch-room was almost free of fault after the reduction as shown by a testing device. This would tend to show the absence of need for an additional man.
The absence of this need is further shown by the amount of time a traveling maintenance crew spent at respondent’s plant after the reduction. At best there was an increase of 3.6 hours per week. President Quatman came to the conclusion after about fourteen months of operating the switchroom with four men, that the operating cost was too high and that a fourth man was not needed. The initial decision to add a fourth man had come after four to five years of disagreement between Quatman and the local Manager over the necessity of adding a fourth man. President Quatman had a right to revaluate his decision and to retract it in the absence of improper motivation. The fact that Local Manager Lahm urged President Quatman to add additional help in the switchroom, was merely a continuation of the long disagreement over a fourth man.
Although the three remaining men in the switchroom worked harder after the reduction, in part due to the installation of new long distance dialing equipment, the record does not show that the extra work could not be handled effectively by three men and that a fourth was needed.
As pointed out before, the Trial Examiner did not question the layoff' of the cable helpers. He complained about the transfer of Sanford from switchman to cable helper in contemplation of the layoffs. But Sanford had previously been a cable helper for about five and one-half years. He held the job as switchman for slightly less than fifteen months, and then only because President Quatman gave in, against his better judgment, to the arguments of Manager Lahm. Under these circumstances it can hardly be said that Sanford’s job as switchman was permanent. The respondent was not required to keep him in that position when his services were no longer needed.
The Board cited the fact that District Manager Tanner in a letter recommended a “good company man” for a position over another person whose brother in another plant was pro-union. Although this letter does provide a basis for an inference of respondent’s general hostility toward unions, it does not provide a basis for an inference of wrongful motive as to a specific discharge. N. L. R. B. v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300 (5th Cir. 1961), rehearing denied, 296 F.2d 896 (1961). The letter here did not relate to Sanford.
The Trial Examiner found that respondent was considering keeping Sanford as a fourth switchman beyond the vacation period when Sanford was recalled on July 15, 1963, but that this plan was abandoned when respondent learned of Sanford’s renewed union activity and his nomination for president of the union on August 8, 1963. This was based on “the August 15 action in relation to Sanford’s nomination and * * * the prior discrimination. * * * ”
In our opinion, the evidence does not establish that respondent intended to retain Sanford beyond the vacation period. The inference which the Trial Examiner drew in this respect was not justified. It is admitted that Sanford was specifically recalled for the vacation period and his tenure after that time was uncertain.
The Board’s determination of a violation of the Act must be based on substantial evidence, not on speculation. Here speculation was the only basis for a decision that Sanford was to be recalled for longer than the vacation period.
Enforcement denied.
. The union had filed charges with the Board, alleging numerous other employees had been wrongfully laid off, but the General Counsel filed a complaint relating only tv) Sanford.
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Lawson H. MYERS, III; Millie Boaz Myers; Robert W. Simms, Co-Executors of the Estate of Lawson H. Myers, Jr.; and Boaz Hospital Supply Company, Inc., Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 89-5337.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 30, 1989.
Decided Jan. 11, 1990.
E.W. Rivers (argued), Paducah, Ky., for plaintiffs-appellants.
Joseph M. Whittle, U.S. Atty., Michael F. Spalding, Asst. U.S. Atty,, Louisville, Ky., Bruce Granger, F. Richard Waitsman (argued), Dept, of Health and Human Services, Office of General Counsel, Atlanta, Ga., for defendant-appellee.
Before: MILBURN and GUY, Circuit Judges; and LIVELY, Senior Circuit Judge.
MILBURN, Circuit Judge.
Lawson H. Myers, III, Millie Boaz Myers, Robert W. Simms, and Boaz Hospital Supply Company, Inc. (“appellants”) appeal the judgment of the district court dismissing their action challenging the decision of the Secretary of Health and Human Services (“Secretary”) to exclude all items and services provided by appellants from coverage under the Medicare program for a period of two years. For the reasons that follow, we affirm.
I.
Appellants were in the business of providing medical supplies and services in the Commonwealth of Kentucky, and utilized the Medicare program to collect payments. On May 11, 1978, appellants were indicted in the United States District Court for the Western District of Kentucky on 170 counts of violating Title XVIII of the Social Security Act, 42 U.S.C. § 1395ml. The indictment charged appellants with knowingly and willfully making and causing to be made false, fictitious, and fraudulent statements and representations of material facts in applications for payment under the Medicare program.
On June 29, 1978, the individual appellants changed their plea from not guilty to nolo contendere to 22 counts in the indictment. The corporation also pleaded nolo contendere to one count and was fined $500, with a nolle prosequi entered as to all other counts. The individual appellants were sentenced to one year as to each of the 22 counts, with a nolle prosequi entered as to all other counts. However, the sentences were suspended, and the individual appellants were placed on probation for two years and fined $2,000.
On August 29, 1979, appellants were notified by the Health Care Financing Administration (“HCFA”) of a proposal to exclude them from participation in the Medicare program for a period of two years. Appellants were informed that the action was proposed because they had “knowingly made or caused to be made false statements and misrepresentations of material facts in application for the payment of Medicare benefits for the purpose of causing payments to be made under Title XVIII of the [Social Security] Act.” The proposed exclusion was authorized by section 1862(d)(1)(A) of the Act, 42 U.S.C. § 1395y(d)(l)(A). Appellants were notified on November 4, 1980, of the HCFA’s determination to exclude all items and services provided by them from coverage under the Medicare program for a period of two years.
On November 14, 1980, appellants requested a hearing on the HCFA’s decision to exclude them from the Medicare program. A hearing was held before an administrative law judge (“AU”) on April 22, 1981, at which Robert Foster, an HCFA employee, and appellant Lawson H. Myers, III, testified. Lawson Myers, Jr., did not testify and did not submit an affidavit. On December 1, 1981, the AU issued a decision affirming the HCFA’s determination to exclude appellants from the Medicare program for a period of two years. On February 6, 1986, the Appeals Council affirmed the two-year suspension, finding the AU’s decision was supported by substantial evidence.
On April 2, 1986, appellants filed this action in the district court to obtain judicial review of the Secretary’s decision. The secretary moved to dismiss the action as moot since the two-year exclusion had expired and appellants could be readmitted to the Medicare Program by reapplying. On December 31, 1986, the district court denied the Secretary’s motion, rejected the magistrate’s recommendation of dismissal, and recommitted the case to the magistrate for a recommendation on the merits of the case.
On June 14, 1988, the magistrate recommended the action be dismissed because the Secretary’s decision was supported by substantial evidence. On August 31, 1988, the district court issued an opinion and order adopting the magistrate’s recommendation and dismissing the case. Appellants filed a motion for reconsideration, which the district court overruled by an order entered on January 17, 1989. This timely appeal followed.
The principal issues on appeal are (1) whether a conviction pursuant to a plea of nolo contendere is admissible in an administrative proceeding; (2) whether substantial evidence supports the Secretary’s decision; and (3) whether the AU erroneously admitted hearsay evidence.
II.
The standard of review applicable to this case is whether the Secretary’s decision to exclude appellants is supported by substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984); 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In our review, we do not consider the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility. Garner, 745 F.2d at 387.
A.
Appellants first argue the Secretary erred by excluding them from the Medicare program on the basis of their convictions following pleas of nolo contendere. Appellants’ argument presents two issues: (1) whether a criminal conviction, after a plea of nolo contendere, is admissible evidence in an administrative proceeding pursuant to 42 U.S.C. § 1395y(d)(l)(A); and (2) whether a conviction pursuant to 42 U.S.C. § 1395nn is sufficient to warrant exclusion from the Medicare program under 42 U.S.C. § 1395y(d)(l)(A).
Citing United States v. Graham, 325 F.2d 922, 928 (6th Cir.1963), appellants argue that neither a plea of nolo contendere nor a conviction resulting therefrom is admissible evidence to prove guilt in another proceeding. Appellants’ reliance upon Graham is misplaced because the nolo contendere pleas and subsequent convictions in this case were not used to prove guilt. Rather, the nolo pleas and convictions were used to disqualify appellants from participating in the Medicare program.
Appellants argued in the district court that the Federal Rules of Evidence and the Federal Rules of Criminal Procedure make a plea of nolo contendere, and subsequent conviction, inadmissible in an administrative proceeding. Appellants argue there is a narrow exception to the rule precluding use of a conviction pursuant to a plea of nolo contendere in a subsequent proceeding which applies only where a statute or judicial rule attaches legal consequences to the fact of a conviction. Appellants concede that in such a case, courts have held there is no valid distinction between a conviction upon a plea of nolo contendere and a conviction after a guilty plea or trial. See Pearce v. United States Department of Justice, Drug Enforcement Admin., 867 F.2d 253 (6th Cir.1988); Noell v. Bensinger, 586 F.2d 554 (5th Cir. 1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Sokoloff v. Saxbe, 501 F.2d 571, 574-75 (2d Cir.1974). In each of those cases, a statute authorized action to be taken upon the finding of a “conviction.” For example, in Pearce and Noell, the Drug Enforcement Administration (“DEA”) used convictions entered after pleas of nolo contendere to revoke a physician’s certification of registration to dispense drugs. The DEA’s action was taken pursuant to 21 U.S.C. § 824(a)(2), which authorizes revocation of registration upon a finding that the registrant has been convicted of a felony. In both cases, the courts held that the term “conviction” in the statute included a conviction upon a plea of nolo contendere. Pearce, 867 F.2d at 255-56; Noell, 586 F.2d at 556-57.
Appellants argue that this case does not fit the narrow exception to the rule against subsequent use of a nolo contendere conviction because the applicable statute does not give force to the fact of any conviction. Appellants point out that section 1395y(d)(l)(A) does not authorize suspension from the Medicare program upon the finding of a conviction. Rather, appellants argue that the statute requires a finding that the appellants acted “knowingly and willfully” in submitting false Medicare claims. Thus, unlike the statute in Soko-loff and Noell, section 1395y(d)(l)(A) requires proof of facts underlying a conviction, not proof of the fact of conviction. In sum, appellants argue that since the statute does not attach legal consequences to the fact of a conviction, the nolo conten-dere conviction is inadmissible.
We reject appellants’ argument. Although appellants do not cite Fed.R. Crim.P. 11(e)(6) or Fed.R.Evid. 410 on appeal, their argument regarding the general rule against use of a nolo contendere plea and conviction in subsequent proceedings is based on these rules. These two rules do not preclude use of a nolo contendere conviction in an administrative proceeding. First, the rules prohibit use of “a plea of nolo contendere,” not a conviction pursuant to a nolo plea. Second, the rules prohibit use of a nolo plea “in any civil or criminal proceeding,” not in an administrative proceeding. Moreover, at a hearing on the Secretary’s determination to exclude a participant from the Medicare program pursuant to section 1395y(d)(l)(A), “[ejvidence may be received ... even though inadmissible under rules of evidence applicable to court procedure.” 42 U.S.C. § 405(b). Thus, appellants’ general rule against admissibility of a nolo plea and conviction is not applicable in an administrative proceeding.
Appellants’ argument for a narrow exception to the rule against admissibility of a nolo conviction also lacks merit. Contrary to appellants’ assertion, proof of nolo convictions has not been restricted to cases in which a statute gives force to the fact of conviction. In Crofoot v. United States Government Printing Off., 761 F.2d 661 (Fed.Cir.1985), a former federal employee sought review of a final order of the Merit Systems Protection Board which upheld his removal on the ground of notoriously disgraceful conduct. The employee was indicted for the felony of fraud against the United States Government after filing a fraudulent claim for worker’s compensation. Pursuant to a plea bargain agreement, the employee entered a plea of guilty to a misdemeanor charge under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and was removed from his government job shortly after his Alford plea was accepted by the court. The Board upheld the employee’s removal on the charge of notoriously disgraceful conduct. Crofoot, 761 F.2d at 663.
Upon review of the Board’s order, the court held that “a conviction on a plea of guilty under the Alford doctrine may, in the Board’s discretion, be considered as the basis for the employee’s removal.” Id. at 665. The court analogized an Alford plea to a plea of nolo contendere, and added that the collateral consequences of a conviction pursuant to either plea should be the same. Id. The court observed, “Several courts have held that the fact of a conviction pursuant to a nolo contendere plea gives rise to a variety of collateral consequences in subsequent proceedings.” Id. (emphasis in original). Although the court remanded the case for consideration of a collateral issue, the court did hold “that substantial evidence supports the Board’s finding that under the circumstances of this case, petitioner’s plea of guilty and subsequent conviction on the charge of false pretenses was notoriously disgraceful conduct.” Id.
In Munnelly v. United States Postal Service, 805 F.2d 295 (8th Cir.1986), the Postal Service discharged a postmaster following his nolo contendere plea to an action by the Nebraska Accounting and Disclosure Commission (“NADC”) charging the postmaster with financial misconduct in his role as a member of the Board of Directors of the Omaha Public Power District. Pursuant to the nolo contendere plea, the NADC made findings of civil violations and imposed a civil penalty of $1,000 for each violation. Id. at 297. The former postmaster exhausted his administrative remedies before filing an action seeking reinstatement. On appeal, the postmaster argued the NADC’s findings of civil violations could not be used to support his discharge because the findings were based on his plea of nolo contendere. Id. at 300. The court rejected the postmaster’s argument, stating that “a conviction pursuant to a nolo contendere plea gives rise to a variety of collateral consequences in subsequent proceedings.” Id. (quoting Crofoot v. United States Government Printing Office, 761 F.2d 661, 665 (Fed.Cir. 1985)). The court held that “the NADC findings based on Munnelly’s nolo conten-dere pleas could be relied upon by the Postal Service as a basis for his removal.” Id.
Crofoot and Munnelly establish that a conviction pursuant to a plea of nolo con-tendere is admissible in an administrative proceeding, even in the absence of a statute giving force to the fact of a conviction. The Secretary's exclusion of appellants from participation in the Medicare program is sufficiently analogous to the disciplinary action taken in Crofoot and Munnelly to warrant admissibility of the convictions in the present case. Accordingly, the convictions pursuant to pleas of nolo contendere were properly considered by the Secretary.
B.
We next consider whether or not appellants’ convictions pursuant to section 1395nn are substantial evidence supporting exclusion of appellants from the Medicare program pursuant to section 1395y(d)(l)(A). Appellants argue that the Secretary must find that they knowingly and willfully made false statements in claiming Medicare payments, and further argue that a nolo contendere conviction does not prove the elements required for exclusion under section 1395y(d)(l)(A). Appellants support their argument by contrasting subsections (d) and (e) of section 1395y. Subsection (e) authorizes the Secretary to suspend physicians or other health care practitioners from participation in the Medicare program if they have been convicted of a program related crime. Appellants contend that subsection (e) evidences Congress’ intent that the Secretary not rely upon a conviction to exclude suppliers from participation in the Medicare program under subsection (d). Appellants note that during Congressional hearings on proposed subsection (e), the AMA and HEW proposed broadening the suspension upon conviction provision to include any person or entity convicted of program related crimes, rather than limiting it to physicians and individual practitioners. Appellants conclude that the absence of a suspension upon conviction provision in subsection (d) means that Congress intended to limit suspension upon conviction to physicians and individual practitioners.
Appellants’ arguments are without merit. Exclusion from the Medicare program pursuant to section 1395y(d)(l)(A) does require the Secretary to determine that the excluded person “has knowingly and willfully made, or caused to be made, any false statement or representation of a material fact for use in an application for payment under this subchapter or for use in determining the right to a payment under this subchapter.” 42 U.S.C.A. § 1395y(d)(l)(A). Appellants were indicted for violating 42 U.S.C. § 1395nn, and the indictment charged appellants with knowingly and willfully making and causing to be made false, fictitious, and fraudulent statements and representations of material facts in applications for payment under the Medicare program. Section 1395nn has language almost identical to that of section 1395y(d)(l)(A). Section 1395nn encompasses whoever “knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under this subchapter.” 42 U.S.C.A. § 1395nn(a).
“It is well-settled that a plea of nolo contendere constitutes an admission of ‘every essential element of the offense [that is] well pleaded in the charge. United States v. Frederickson, 601 F.2d 1358, 1365 n. 10 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979) (brackets in original) (quoting Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 1566, 6 L.Ed.2d 940 (1961)). Appellants’ pleas of nolo contendere to the charges constitute an admission that they knowingly and willfully made or caused to be made false, fictitious and fraudulent statements and representations of material facts in applications for payment under the Medicare program. Because the indictment and the statutes have virtually identical language, a conviction under section 1395nn establishes the essential elements of section 1395y(d)(l)(A), and it is substantial evidence warranting exclusion of appellants from the Medicare program.
C.
Appellants next argue the AU erred by admitting hearsay evidence which was irrelevant and unreliable. At the hearing, appellants objected to the testimony of Robert Foster, a HCFA employee, regarding his investigation of the case and his interviews with former customers of the appellants. Appellants contend the hearsay testimony was irrelevant because it was not relied upon by the Secretary in excluding appellants from the Medicare program. Appellants assert that admission of the irrelevant hearsay evidence was fundamentally unfair since it did not form the basis of the exclusion.
Appellants cite the case of Calhoun v. Bailar, 626 F.2d 145 (9th Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981), as setting out a test for admissibility of hearsay evidence in administrative hearings. The court in Calhoun stated that the test for admissibility of hearsay evidence in an administrative context requires “that the hearsay be probative and its use fundamentally fair.” Id. at 148. The court also discussed the Supreme Court’s decision in Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971), in which the Court listed nine factors that assure reliability and probative value. Appellants argue the multifactor analysis of reliability should have been conducted by the ALJ before admitting the hearsay testimony.
A careful reading of Richardson and Calhoun reveals that the multifactor analysis is used to determine whether the hearsay evidence constitutes substantial evidence supporting an administrative decision. In other words, the multifactor analysis is used to assure reliability when hearsay evidence is the sole basis for agency action. See Calhoun, 626 F.2d at 149. Thus, appellants’ argument for application of Calhoun’s multifaetor analysis is misplaced. The present case is not one in which hearsay evidence alone must constitute substantial evidence in order to support the Secretary’s decision.
Hearsay evidence is admissible in an administrative proceeding, provided it is relevant and material. Richardson, 402 U.S. at 400, 91 S.Ct. at 1426; Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 1025 (3d Cir. 1986). The hearsay testimony to which appellants object is relevant and material to this case. The hearsay testimony concerned the Secretary’s investigation of appellants and consisted of information derived from interviews with former customers of the appellants. Although the ALJ conceded that the hearsay testimony alone was insufficient to support exclusion of appellants, the hearsay testimony remained relevant and material because the AU concluded that the convictions, combined with the hearsay evidence, were sufficient to exclude the appellants.
In the context of their challenge to the hearsay evidence, appellants also challenge the credibility of Foster’s testimony. Appellants cite testimony by Lawson Myers, III, contradicting and impeaching Foster’s testimony. However, the AU gave little weight to Myers’ self-serving testimony, and found it insufficient to rebut the Secretary’s evidence. Although the “reviewing court does not act, even in credibility matters, as a mere rubber stamp for the administrative agency action on appeal;” Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1290 (6th Cir.1984), “[i]t is well-settled that it is 'the function of the AU to resolve credibility problems.’ ” NLRB v. Norbar, Inc., 752 F.2d 235, 239 (6th Cir. 1985) (quoting NLRB v. Downslope Industries, Inc., 676 F.2d 1114, 1116 (6th Cir 1982)). “This court will not normally disturb the credibility assessments of ... the Administrative Law Judge who has observed the demeanor of the witnesses.” Norbar, 752 F.2d at 239 (quoting NLRB v. Magnetics International, Inc., 699 F.2d 806, 813 (6th Cir. 1983)). Because the AU was required to evaluate conflicting testimony from two witnesses, his opportunity to observe the demeanor of the witnesses warrants deference to his decision, and appellants’ argument challenging Foster’s credibility is rejected.
III.
For the reasons stated, the district court’s judgment dismissing appellants’ action is AFFIRMED.
. 42 U.S.C. § 1395nn was repealed, effective August 18, 1987, by section 4(e) of the Medicare and Medicaid Patient and Program Protection Act of 1987, Pub.L. No. 100-93, 101 Stat. 689 (1987).
. 42 U.S.C. § 1395y(d) was repealed, effective August 18, 1987. Id. § (8)(c)(l)(A).
. On October 7, 1987, appellants notified the district court of the death of Lawson H. Myers, Jr. The court ordered the co-executors of the estate be substituted as plaintiffs.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_oththres
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Daniel J. DEVANEY, as trustee under Chapter 11 of the Bankruptcy Code for CB & R (Holdings) Ltd., et al., Plaintiffs-Appellants, v. A.P. CHESTER, et al., Defendants-Appellees.
No. 497, Docket 86-7744.
United States Court of Appeals, Second Circuit.
Argued Feb. 2, 1987.
Decided March 9, 1987.
Gabriel B. Schwartz, New York City (Hahn & Hessen, Steven J. Mandelsberg and Joseph A. Vogel, New York City, of counsel), for plaintiffs-appellants.
Peter D. McKenna, New York City (Wachtell, Lipton, Rosen & Katz; Richard H. Weiss and Karen B. Shaer, New York City, of counsel), for defendant-appellee Salomon Bros.
Before PIERCE and ALTIMARI, Circuit Judges, and STEWART, District Judge.
Honorable Charles E. Stewart, Jr., Senior Judge of the United States District Court for the Southern District of New York, sitting by designation.
ALTIMARI, Circuit Judge:
Daniel J. Devaney, as the trustee in bankruptcy for CB & R (Holdings), Ltd. and its subsidiaries, appeals from an order of the United States District Court for the Southern District of New York (John F. Keenan, Judge), dismissing appellants’ claims against appellee Salomon Brothers Inc and denying leave to amend, pursuant to Fed.R.Civ.P. 9(b). We affirm the district court’s dismissal of the claims for failing to plead fraud with sufficient particularity, but we reverse the court’s denial of leave to amend, and remand with instructions to grant appellants leave to replead their fraud claims against Salomon Brothers.
BACKGROUND
Between June and November of 1982, CB & R (Holdings), Ltd. (“CB & R”) negotiated with the majority shareholders of American Marine Industries, Inc. (“AMI”) to purchase the shares of AMI. CB & R was controlled by Erik K. Klaussmann, III and David Lindsay. The First Boston Corporation acted as CB & R’s advisor and investment banker in this transaction.
In August 1982, AMI retained Salomon Brothers Inc as its exclusive agent to assist in the sale of the company. In late September 1982 Salomon Brothers sent a prospectus on AMI to Klaussmann, Lindsay and First Boston. This prospectus was accompanied by a cover sheet dated “September, 1982,” which states in pertinent part:
AMERICAN MARINE INDUSTRIES, INC. CONFIDENTIAL MEMORANDUM
Salomon Brothers Inc has been appointed exclusive agent by American Marine Industries, Inc. (“AMI”) to assist in the sale of the Company.
This Confidential Memorandum has been prepared by Salomon Brothers Inc from information furnished to it by the management of AMI____
This Confidential Memorandum has been prepared for the purpose of providing prospective buyers with general business, financial and other information concerning AMI. While the information contained herein is believed to be accurate, Salomon Brothers Inc and AMI expressly disclaim any and all liability for representations, expressed or implied, contained in, or for omissions from, this Confidential Memorandum or any other written or oral communication transmitted to any interested party in the course of the evaluation of AMI.
The prospectus itself contained, inter alia, the following statements:
Over the past two years, after a lengthy period of generally consistent profits, AMI has come to face a situation of declining profits and cash shortages. The Company [AMI] believes this situation is wholly transitory, and has resulted from a depressed world economy, difficulty in controlling costs, and also disagreements among senior management.
AMI believes that its American Atlantic subsidiary [AAS] has a unique franchise to capitalize on an impending pooling agreement covering all trade between the U.S. and the North Coast of Brazil, including the Amazon region.
The sale of AMI’s shares was closed on November 24, 1982, at which time CB & R purchased 99.5% of AMI’s outstanding common stock for over nine and one-half million dollars. Although CB & R believed it had purchased a viable operation, AMI remained unable to pay its debts. In June 1983, both AMI and CB & R filed for Chapter 11 bankruptcy.
In November 1983, appellant Daniel J. Devaney, as the Chapter 11 Trustee for CB & R and its subsidiaries, brought suit against the former majority shareholders of AMI and other defendants. The complaint alleged, in essence, that AMI had defrauded CB & R by leading Klaussmann and Lindsay to believe that AMI had the potential for continuing financial success when in fact, AMI management knew that the company was on the verge of bankruptcy and would not survive.
On June 11, 1984, appellants filed a “second amended and supplemental complaint” which added Salomon Brothers as a defendant in the action. The amended complaint set forth the two previously quoted state-merits from the AMI prospectas which Salomon Brothers had sent to CB & R in September 1982. The complaint then went on to allege:
Salomon’s late September 1982 Confidential Memorandum on AMI was false and misleading in that: at the time when it was prepared and distributed, the management of AMI, to the knowledge of Salomon, had concluded that the fiscal problems of AMI were fundamental and more than transitory and that the survival of AMI was, therefore, extremely doubtful.
Complaint H 40(B)(i) (emphasis added).
The complaint then quoted portions of several internal AMI memoranda to support the contention that AMI management knew the company was in “deep trouble.” The latest and grimmest of these memoranda was dated September 28, 1982. The complaint did not, however, allege any additional facts pertaining to Salomon Brothers.
The first through fifth claims for relief charged that Salomon Brothers’ allegedly fraudulent conduct was in violation of section 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2); section 17 of the 1933 Act, 15 U.S.C. § 77q; section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.-10b-5, promulgated thereunder; section 352-c of the New York General Business Law; and the New York common law of deceit.
In two separate memorandum opinions dated April 29, 1986 and July 23, 1986, Judge Keenan granted Salomon Brothers’ motion to dismiss all claims against it, holding that the complaint failed to plead fraud with sufficient particularity, as required by Fed.R.Civ.P. 9(b). The court denied appellants leave to amend and replead.
DISCUSSION
I. Compliance with Rule 9(b)
Fed.R.Civ.P. 9(b) provides, “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” We agree with the district court’s finding that appellants failed to plead their fraud claims against Salomon Brothers with sufficient particularity. Although Rule 9(b) permits knowledge to be averred generally, plaintiffs must still plead the events which they claim give rise to an inference of knowledge. See, e.g., Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir.1985); Ross v. A.H. Robins Co., 607 F.2d 545, 558 (2d Cir.1979), cert. denied, 446 U.S. 946, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980). This court has recently observed:
The absence of a requirement that scienter be alleged with “great specificity” is based on the premise that a plaintiff realistically cannot be expected to plead a defendant’s actual state of mind____ This does not mean, however, that plaintiffs are relieved of their burden of pleading circumstances that provide at least a minimal factual basis for their conclusory allegations of scienter.
Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir.1987) (citations omitted).
Appellants’ complaint contains nothing more than the sort of conclusory allegations of knowledge which were found to be insufficient in Connecticut National Bank, id. After stating that Salomon Brothers was retained by AMI to assist in the sale of the company, and that Salomon distributed to CB & R a prospectus on AMI which contained allegedly false and misleading information, the complaint simply alleges that Salomon Brothers knew that AMI management did not subscribe to the optimistic outlook reflected in the prospectus. The complaint does not allege any facts to suggest who at Salomon Brothers possessed such knowledge, when and how they obtained the knowledge, or even why anyone at Salomon Brothers should have known that the views expressed in the prospectus did not represent the true beliefs of AMI management.
Thus, the district court was correct in finding that “[t]he conclusory statements that Salomon knew that AMI did not subscribe to the beliefs reported in the Confidential Memorandum do not allow for any inference, let alone a strong one, regarding Salomon’s knowledge.”
Appellants argue that a more relaxed standard of pleading should apply to their fraud claims, citing several bankruptcy cases which have required less particularity in pleading when claims were asserted by a trustee. See, e.g., In Re O.P.M. Leasing Services, Inc., 32 B.R. 199 (Bkrtcy.1983). The rationale for relaxing the particularity requirement in such cases is that the trustee is a “third party, who is pleading fraud on secondhand information,” id. at 202. However, even the so-called relaxed standard does not eliminate the particularity requirement, although we recognize that the degree of particularity required should be determined in light of such circumstances as whether the plaintiff has had an opportunity to take discovery of those who may possess knowledge of the pertinent facts. A complaint like plaintiff’s, which fails to adduce any specific facts supporting an inference of knowledgeable participation in the alleged fraud, will not satisfy even a relaxed standard. See Glusband v. Fittin Cunningham Lauzon, Inc., 582 F.Supp. 145, 151 & n. 13 (S.D.N.Y.1984).
The district court also found that appellants failed adequately to plead CB & R’s reliance on the allegedly misleading prospectus. The court based this conclusion on its observation that no investor with CB & R’s level of sophistication could reasonably have relied on the prospectus, in light of Salomon Brothers’ “broad disclaimers as to the source of information contained therein.” The court should not, however, have considered the reasonableness of appellants’ reliance; that issue went to the merits of appellants’ claims and thus was not properly before the court on Salomon’s 9(b) motion. Nevertheless, the court was fully justified in dismissing the claims at issue, based on the inadequacy of appellants’ pleadings relating to scienter.
II. Leave to replead
Although we agree with the district court that appellants’ claims against Salomon Brothers failed to comply with Rule 9(b), we conclude that the court abused its discretion by not granting appellants leave to replead. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (outright refusal to grant leave to amend without any justifying reason for the denial is abuse of discretion); see also Luce v. Edelstein, 802 F.2d 49, 56-57 (2d Cir.1986); Raster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir.1984).
Fed.R.Civ.P. 15(a) provides that leave to amend “shall be freely given when justice so requires.” In Luce, 802 F.2d at 56, this court observed that in cases where the denial of leave to replead after a 9(b) dismissal has been affirmed, there was a legitimate justification for the denial. Typically, the plaintiff had already been granted a prior opportunity to replead fraud with greater specificity. See, e.g., Armstrong v. McAlpin, 699 F.2d 79, 93-94 (2d Cir.1983); Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 115 (2d Cir.1982). In one such case, the deficient pleadings were made after full discovery in a related case. Billard v. Rockwell International Corp., 683 F.2d 51, 57 (2d Cir.1982).
Neither of those situations applies'to appellants in this case. The “second amended and supplemental complaint” was the first pleading to assert claims against Salomon Brothers; and appellants have had no discovery of Salomon Brothers as yet.
The district court’s order is hereby affirmed in part and reversed in part, and remanded with instructions to grant appellants leave to amend their complaint by repleading their claims against Salomon Brothers with greater particularity.
Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_geniss
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G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
AARON FERER & SONS LIMITED, Plaintiff-Appellant, v. The CHASE MANHATTAN BANK, NATIONAL ASSOCIATION, Defendant-Appellee. WILLIAMS & GLYN’S BANK LIMITED, Plaintiff-Appellant, v. The CHASE MANHATTAN BANK, NATIONAL ASSOCIATION, Defendant-Appellee.
Nos. 280, 281, Dockets 83-7420, 83-7424.
United States Court of Appeals, Second Circuit.
Argued Oct. 31, 1983.
Decided March 14, 1984.
Ludwig A. Saskor, New York City (Smith, Steibel, Alexander & Saskor, P.C., George M. Donaldson, Mary G.B. Boney, New York City, of counsel), for plaintiffs-appellants.
Andrew J. Connick, New York City (Mil-bank, Tweed, Hadley & McCloy, John C. Maloney, Jr., John B. Madden, Jr., New York City, of counsel), for defendant-appel-lee.
Before FEINBERG, Chief Judge, and NEWMAN and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
Plaintiffs, Williams & Glyn’s Bank, Ltd. (Williams & Glyn’s) and Aaron Ferer & Sons, Ltd. (Ferer-London), appeal from a judgment of the United States District Court for the Southern District of New York, Honorable Thomas P. Griesa, Judge, entered after a jury trial, dismissing their joint actions against defendant, The Chase Manhattan Bank (Chase). Williams & Glyn’s and Ferer-London sued Chase for money had and received, breach of fiduciary duty, negligence, misrepresentation, and for rescission of releases exchanged between Chase and Williams & Glyn’s. Plaintiffs alleged that money lent by Williams & Glyn’s to Ferer-London had been converted by Ferer-London’s American parent corporation, Aaron Ferer & Sons Co. (Ferer-Omaha), which had used the money to repay loans owing to Chase, and that Chase knew the money actually belonged to plaintiffs. At the close of evidence the trial court directed a verdict in Chase’s favor on the breach of fiduciary duty and negligence counts. Thereafter, the court set aside the jury’s special verdicts, which found that Chase had misrepresented or concealed material facts connected with the release, and instead held that the release was not tainted with fraud, was valid, and barred Williams & Glyn’s entire action. Finally, the trial court determined that Ferer-London failed to prove its count for money had and received, and it dismissed both complaints. We affirm.
I. BACKGROUND
Before addressing the legal issues, we must undertake a detailed review of the essential facts. Ferer-Omaha is a Nebraska corporation that bought and sold metal both in the United States and abroad. Defendant Chase Manhattan Bank is a national bank with offices in New York and London. Chase provided much of the financing for Ferer-Omaha’s operations, and had a perfected security interest in all of Ferer-Omaha’s property.
Plaintiff Ferer-London is an English corporation and a wholly owned subsidiary of Ferer-Omaha. . Ferer-London was also engaged in the metal trading business. Fer-er-London’s purchases were financed in part by Chase, and in part by plaintiff Williams & Glyn’s, an English bank with offices in London and New York.
A. Chase’s Credit Arrangement with Ferer-Omaha
In April 1970 Ferer-Omaha entered into a credit and security agreement with Chase and the United States National Bank of Omaha (USNB), a local bank acting as agent for Chase. Chase perfected its security interest in Ferer-Omaha’s property by filing financing statements in Nebraska, New York, and other jurisdictions where Ferer-Omaha did business. Chase and USNB provided Ferer-Omaha with a revolving line of credit which permitted Fer-er-Omaha to borrow up to $5 million determined by a “borrowing base” formula. The borrowing base consisted of 90% of Ferer-Omaha’s accounts receivable and an allowance of $1 million for inventory. In exchange, Ferer-Omaha agreed to assign its accounts receivable directly to Chase. Assignments and copies of the invoices representing the amounts due on the accounts were sent weekly to Chase.
Chase’s control over the accounts receivable assigned to it was achieved through the use of a “lock box”, which was really nothing more than a post office box in Chase’s name. Ferer-Omaha’s invoices bore a legend that requested its customers to remit payment directly to the lock box in New York City. Use of the lock box insured that Chase and USNB retained control over the receivables and also served to expedite receipt and recordation of payments. Chase collected checks from the lock box and deposited them into a cash collateral account maintained by it for Fer-er-Omaha. While the funds in the cash collateral account belonged to Ferer-Oma-ha, transfers from that account were controlled by Chase pursuant to the borrowing base formula. If there was insufficient collateral to support the debt owed to Chase, it had the option of applying funds from the cash collateral account to reduce the loans in accordance with the credit and security agreement. The evidence showed, however, that the funds received in the cash collateral account were usually transferred immediately to Ferer-Omaha’s operating account.
B. Course of Dealing Between Ferer-Omaha and Ferer-London
In late 1970 Ferer-Omaha’s president, Harvey Ferer, formed an English subsidiary, Ferer-London, to assist Ferer-Omaha in the metal trading business. Harvey Fer-er also planned to use Ferer-London to trade in metal futures contracts on the London Metal Exchange (LME). Chase extended a small line of credit to Ferer-Lon-don, and financed specific copper purchases by Ferer-London on a transaction-by-transaction basis.
The usual operating arrangement between Ferer-Omaha and Ferer-London was that the copper purchased by Ferer-London would be transferred to Ferer-Omaha for refining and sale to end users. Ferer-Oma-ha paid for the shipping and refining, and determined the selling price of the copper. After receipt of the sales proceeds, Ferer-Omaha would be reimbursed for its expenses, Ferer-London would be repaid the original purchase price, and any profit would then be divided between parent and subsidiary. The arrangement between the companies was never set out in writing.
Ferer-Omaha usually invoiced its sales of Ferer-London’s copper on Ferer-London invoices. Although Ferer-London’s invoices did not bear the legend directing payment to the Chase lock box, most of the purchasers of the Ferer-London copper through Ferer-Omaha followed their customary practice and sent payments there anyway. The funds would pass through the collateral account, into the operating account, and Ferer-Omaha would then repay Ferer-Lon-don from that account.
C. The Codelco Copper
In 1973 Harvey Ferer, acting for Ferer-Omaha, contracted with Corporación del Cobre (Codelco) in Chile for the monthly purchase of partially refined copper. Fer-er-Omaha did not have sufficient credit at Chase to purchase all of the copper it contracted for, so at Harvey Ferer’s request, Ferer-London purchased some of the monthly shipments. Two Ferer-London purchases from Codelco were financed by Chase.
In August 1973 Williams & Glyn’s began financing Ferer-London’s purchases of copper from Codelco. The terms of the loans from Williams & Glyn’s to Ferer-London were not reduced to writing anywhere other than in the credit applications Ferer-Lon-don filed to procure letters of credit from Williams & Glyn’s. With respect to the Codelco copper Williams & Glyn’s never filed a financing statement, security agreement, or any other document to perfect a lien in England or in any jurisdiction in the United States until after most of the Codel-co copper had been sold.
At first Codelco did not realize that it was dealing with both Ferer-Omaha and Ferer-London as buyers. Consequently, some of the earlier contracts mistakenly named Ferer-Omaha as buyer, when in fact, Ferer-London was the buyer. Ferer-Omaha returned the contracts, and Codelco changed most of them to show Ferer-Lon-don as buyer. Codelco’s invoices listed the buyer’s name, address, Codelco contract number, and a letter of credit number. The invoices also showed the name of the vessel the copper was to be shipped on, the date and place of shipping, and the destination.
Both Ferer-Omaha’s and Ferer-London’s purchases of Codelco copper were invoiced on a provisional basis, based on an estimated copper content. Following assay, a final invoice was issued. If the final invoice was lower than the provisional invoice, then Co-delco owed a refund for" overpayment; conversely, if the final invoice was higher than the provisional invoice, then a balance was due from the buyer.
When the ships bearing Codelco copper reached the United States, Ferer-Omaha performed its usual services by arranging for further refining and sale. However, instead of invoicing the sales of Ferer-Lon-don’s refined Codelco copper on Ferer-Lon-don’s invoices, as had been its prior practice, Ferer-Omaha invoiced the Codelco copper sales on its own forms and assigned the invoices to Chase. Notwithstanding those assignments, however, until March 1974 Ferer-Omaha was diligent in sending Ferer-London sufficient funds to enable Ferer-London to repay the loans it owed to Williams & Glyn’s.
D. The Crisis
Serious delays in payments from Ferer-Omaha to Ferer-London on Codelco copper sales began in March 1974. On April 20, 1974, two Ferer-London directors flew to Omaha and met with Harvey Ferer seeking to accelerate payments. During the course of the meeting Harvey Ferer revealed that he had diverted $12 million of Ferer-Lon-don’s Codelco proceeds to pay LME margin calls. The Ferer-London directors returned to London and informed Williams & Glyn’s of Ferer-Omaha’s problems. They also told Williams & Glyn’s that Chase had a security interest or “charge” over all of Ferer-Omaha’s receivables.
Two days later, on April 22, 1974, Harvey Ferer told Chase officials about the potential loss of $25 million because of his speculation on the LME. He also told Chase representatives that Ferer-London owed $12 million to Williams & Glyn’s that could not be repaid because the funds had been diverted to pay margin calls on the LME. That same day, Chase made a formal demand on Ferer-Omaha for repayment of its loans. On April 24 Ferer-Oma-ha filed a Chapter XI petition in the bankruptcy court in Omaha. A few months later Ferer-London went into liquidation in England.
As part of the effort to collect its outstanding loans, Williams & Glyn’s had Fer-er-London assign its interest in those Co-delco copper shipments that corresponded to unpaid letters of credit. Using the assignments, Williams & Glyn’s was able to take possession of several shipments and thereby reduce its losses to approximately $7.7 million. Williams & Glyn’s and Ferer-London then proceeded to the bankruptcy court in Nebraska to determine what would be available for them from Ferer-Omaha.
E. The Omaha Bankruptcy Proceedings
As part of the bankruptcy proceedings in' Omaha, and with the approval of the bankruptcy court,- Chase continued to finance Ferer-Omaha at vastly reduced levels. This enabled Ferer-Omaha to continue operating its metals trading business under the supervision of the bankruptcy court. While the court specifically approved use of the “lock box” system, it maintained summary jurisdiction over the funds being transferred into and out of the collateral account.
From 1974 until early 1977 Williams & Glyn’s was represented in the Ferer-Omaha bankruptcy proceedings by Carter, Led-yard & Milburn (Carter Ledyard), a New York law firm. Carter Ledyard reported to Williams & Glyn’s London solicitors, and in turn retained Kennedy, Holland, DeLacey & Svoboda (Kennedy Holland) as local counsel in Omaha. In late 1975 Ferer-Lon-don also retained Carter Ledyard and Kennedy Holland.
In May 1974 Williams & Glyn’s and Fer-er-London brought reclamation actions against Ferer-Omaha in the bankruptcy court. Williams & Glyn’s claimed that Fer-er-Omaha had converted approximately $9 million that should have been turned over to Ferer-London for repayment to Williams & Glyn’s. Ferer-London’s original claim was for approximately $10 million, but because $9 million of that claim was represented by amounts assigned to Williams & Glyn’s, Ferer-London voluntarily reduced its claim to approximately $1 million. Fer-er-London joined Williams & Glyn’s in seeking to enjoin Ferer-Omaha from disposing of Ferer-London’s Codelco copper or proceeds. Chase moved to intervene, claiming that it had a perfected security interest in all of Ferer-Omaha’s property.
The bankruptcy court entered a temporary restraining order directing Ferer-Oma-ha to furnish a summary of all transactions relating to the disposition of the Codelco copper. Ferer-Omaha’s summary stated that all of the accounts receivable had been paid, but did not show that the funds had passed through the collateral account at Chase. Williams & Glyn’s then sought to withdraw its reclamation action without prejudice. Chase did not oppose the withdrawal motion, but sought to have attorneys’ fees assessed against Williams & Glyn’s if the withdrawal motion was granted.
During the course of oral argument on the withdrawal motion, counsel for Williams & Glyn’s attempted to characterize his client as the innocent party in all of the bankruptcy proceedings and argued that attorneys’ fees should not be awarded. Counsel for Williams & Glyn’s argued that a good deal of Ferer-London proceeds owed to Williams & Glyn’s “directly or indirectly, went to Chase Manhattan Bank * * Thus, both Williams & Glyn’s and Ferer-London knew, or at least suspected, as early as July 1974, that Chase was the recipient of the money which Williams & Glyn’s claimed. The bankruptcy court granted Williams & Glyn’s motion to withdraw and denied Chase’s motion for attorneys’ fees.
1. The Codelco Refunds
Because the final assay of copper content in the Codelco shipments proved to be lower than the provisional assays, Ferer-Oma-ha and Ferer-London were due refunds for overage payments on most of the copper purchased from Codelco (hereinafter “Co-delco refunds”). On May 7, 1975, Harvey Ferer furnished Chase with a handwritten schedule of Codelco contracts, stating whether the contract was in Ferer-Omaha’s or Ferer-London’s name, the amounts due or owing, and the financing bank.
On May 30, 1975, Codelco paid Chase approximately $505,000 in Codelco refunds. Two weeks later, Codelco sent approximately $17,000 more, for a total of $522,-000. Chase, believing that its security interest gave it a superior right to the refunds, applied them to Ferer-Omaha’s outstanding pre-bankruptcy loans.
Williams & Glyn’s was aware that Chase claimed the refunds on account of the Fer-er-Omaha and Ferer-London purchases financed by Chase. In a phone conversation in May 1975, Chase’s attorney told James Gadsden, an attorney for Williams & Glyn’s, that Chase had received refunds from Codelco and that Chase believed that it was entitled to keep them because of its security interest in all of Ferer-Omaha’s property. At the same time, Ferer-Omaha furnished Williams & Glyn’s with a schedule of amounts due from Codelco which contained exactly the same information, in typewritten form, that had been furnished to Chase by Harvey Ferer. The schedule furnished to Williams & Glyn’s even had footnotes to show which Ferer-London shipments Chase claimed, some of which included shipments financed by Williams & Glyn’s. Gadsden related this information to the London attorneys for the bank, and furnished them with the schedule showing the amounts due.. At that time no one objected to Chase’s retention of the Codelco refunds.
2. The Confirmed Plan of Arrangement and Exchange of Releases
In 1975 Chase and the other creditors of Ferer-Omaha sought to work out a reorganization plan so that Ferer-Omaha could emerge from the bankruptcy proceedings. The problem facing the creditors and the debtor, however, was the existence of the potential Williams & Glyn’s/Ferer-London claim of approximately $9-10 million. The validity of Ferer-London’s and Williams & Glyn’s claims had been disputed at many creditors’ meetings, but in the summer of 1975 a compromise began to emerge.
That compromise was embodied in a stipulation filed in the bankruptcy court on May 21, 1975, and in releases exchanged between Chase and Williams & Glyn’s in September 1975. The stipulation entered into between Williams & Glyn’s, Ferer-Lon-don, and Ferer-Omaha, provided that Ferer-Omaha, although denying any intent to commit any wrongdoing, had technically “converted” Ferer-London copper financed by Williams & Glyn’s. Therefore, the stipulation proved Williams & Glyn’s unsecured claim for $9 million in the bankruptcy proceedings. The stipulation also stated that Williams & Glyn’s was holding $358,-000 that belonged to Ferer-Omaha, which both Chase and Williams & Glyn’s claimed. The stipulation allowed Williams & Glyn’s to keep the $358,000 and set it off against their bankruptcy claim. Finally, the stipulation provided that Williams & Glyn’s would drop its non-dischargeability complaint filed in May 1975 so that a plan of arrangement could be worked out.
In return for dropping its objections to the claims of Williams & Glyn’s, and consenting to the set off of the $358,000, Chase obtained a release from Williams & Glyn’s in which Williams & Glyn’s released all claims
which it ever had, now has or which it or its successors hereafter can, shall or may have against The Chase Manhattan Bank, N.A. or against The United States National Bank of Omaha, for, upon or by reason of any matter, cause or thing whatsoever from the beginning' of the world to the day of the date of these presents, arising out of any transactions or occurrences involving Williams & Glyn’s Bank Ltd. and Aaron Ferer & Sons Co., a Nebraska corporation, or Aaron Ferer & Sons Ltd., a United Kingdom corporation, or any transactions or occurrences involving The Chase Manhattan Bank, N.A. and/or The United States National Bank of Omaha and Aaron Fer-er & Sons Co. or Aaron Ferer & Sons Ltd.; * * *.
Relying in part on the stipulation, the bankruptcy court, on September 8, 1975, confirmed a plan of arrangement for Ferer-Omaha that permitted Williams & Glyn’s to participate as an unsecured creditor of Fer-er-Omaha to the full extent of its $9 million claim.
II. THE PRESENT ACTIONS
In May 1977 Williams & Glyn’s and Fer-er-London learned that the Codelco refunds paid to Chase amounted to $522,000. Fer-er-London’s liquidator protested, claiming that Chase was not entitled to those funds and demanding that Chase remit them to Ferer-London. When Chase refused, plaintiffs instituted these joint actions in the New York Supreme Court in August 1977. Because international banking transactions were involved, Chase removed the actions to the federal district court pursuant to 12 U.S.C. § 632 (1982).
Plaintiffs’ amended complaints sought damages for money had and received, negligence, breach of fiduciary duty, and misrepresentation. Additionally, Williams & Glyn’s sought rescission of the 1975 release because of alleged misrepresentations by Chase.
In 1979 Chase sought discovery of all Carter Ledyard and Kennedy Holland memoranda, contending that the misrepresentation count raised an issue of Williams & Glyn’s knowledge at the time the releases were exchanged. Chase also sought discovery of all correspondence between the law firms and Williams & Glyn’s. The district court granted Chase’s motion, but excluded from the discovery any portion of the memoranda or correspondence that contained instructions and information from Williams & Glyn’s. We see no error in the district court’s resolution of this discovery problem.
In April 1980 Chase moved for summary judgment on the ground that plaintiffs’ claims were barred by the amended plan of arrangement in the bankruptcy proceedings. Chase argued that plaintiffs were aware of their potential claims in the bankruptcy proceedings, that plaintiffs had participated in those proceedings, and that all claims were, or should have been, litigated in the bankruptcy court. Judge Griesa granted partial summary judgment, holding that:
Those issues, the property, the receivables of Ferer-Omaha were within the jurisdiction of the bankruptcy court. Ferer-London and Williams & Glyn’s were out there claiming conversion. The bankruptcy action clearly embraces or clearly embraced and bars now further litigation about claims by plaintiffs here against Chase arising from the post-April 24, 1974 matters.
A jury trial on the remaining issues began on March 24, 1983, and continued until April 18, 1983. At the close of all the evidence, Judge Griesa dismissed the negligence and breach of fiduciary duty counts, holding that plaintiffs’ negligence actions were barred by New York’s three-year statute of limitations, and that, as a matter .of law, plaintiffs had failed to prove that Chase owed a fiduciary duty to either plaintiff.
The court then submitted four questions to the jury in the form of special verdicts. The first two questions asked about Chase’s knowledge of Ferer-London’s ownership interest or Williams & Glyn’s security interest in the Codelco copper. The jury found that Chase had no actual knowledge of either interest. On questions 3 and 4, which related to the release, the jury found that Chase had misrepresented or concealed material facts connected with the release and that Williams & Glyn’s had relied on that misrepresentation or concealment.
Chase moved to set aside the affirmative responses to the release questions and for judgment n.o.v. The court granted Chase’s motion, stating:
Williams & Glyn’s was represented by counsel both in New York and in Omaha. Williams & Glyn’s had all the rights of the American litigation process available to it before it signed any release. Aside from that, the record is absolutely conclusive that Williams & Glyn’s knew, and Ferer-London knew, the nature of their claims against Chase. The documents are absolutely conclusive on that.
The district court therefore ruled that the release was valid and that it barred Williams & Glyn’s entire action.
Turning to Ferer-London’s only remaining cause of action — money had and received — Judge Griesa held that (1) Chase was a “good faith purchaser” under Article 2 of the Uniform Commercial Code; (2) Ferer-London never attempted to show that any of its money could be traced to Chase; and (3) equity did not require that Chase bear the loss suffered by Ferer-London. On April 27, 1983, judgment was entered dismissing both plaintiffs’ complaints.
III. DISCUSSION
Before taking up the specific claims on appeal, we need to consider the controlling law and the proper standard of review. It is apparent from the factual picture painted above that the events leading to this litigation cut across the boundaries of two foreign nations, England and Chile, and at least two states within the United States, New York and Nebraska. Inexplicably, none of the parties have attempted to show which forum’s law should govern these actions. Instead, both sides have drawn from a potpourri of decisions from the jurisdictions connected with the events in question, concentrating, however, on New York law.
These actions were removed to the district court under the Edge Act, 12 U.S.C. § 632 (1982), which provides:
[A]ll suits of a civil nature at common law or in equity [involving a United States corporation], arising out of transactions involving international or foreign banking, * * * shall be deemed to arise under the laws of the United States, * * [and may be removed] into the district court * * *.
The fact that this action “arises under the laws of the United States”, however, does not necessarily mean that federal law supplies the ultimate rule of decision. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). Believing that this type of controversy, like that in Kimbell Foods, does not require a uniform federal rule, and applying the federal common law choice of law approach set out by Judge Lumbard in Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786 (2d Cir. 1980), cert. denied, 449 U.S. 1111, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981), we conclude that New York law governs plaintiffs’ complaints.
In Corporación Venezolana de Fomento, Judge Lumbard separated the issues to determine which forum’s law would apply to each. Id. at 794; see also Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir.1962) (en banc), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963). The case at bar involves two different types of issues: restitution (money had and received) and tort (negligence, breach of fiduciary duty, and misrepresentation).
As to the action for money had and received, New York law governs. The banking relationship between Ferer-Omaha and Chase arose in New York, the banking transactions were carried out in New York, Chase’s principal offices are located in New York, Williams & Glyn’s has an office there, and Chase received plaintiffs’ money, if at all, through the lock box and collateral account in New York. See Restatement (Second) Conflict of Laws § 221 (1971); Industrial Export & Import Corp. v. HongKong & Shanghai Banking Corp., 191 Misc. 493, 77 N.Y.S.2d 541 (N.Y. Sup.Ct.1947), affd, 302 N.Y. 342, 98 N.E.2d 466 (1951); see also Ehrenzweig, Restitution in the Conflict of Laws, 36 N.Y.U.L. Rev. 1298, 1305-07 (1961) (law of forum usual rule in restitutionary actions). Additionally, New York has a significant interest in regulating banking practices occurring within its borders.
New York also has the superior interest in having its law applied to the negligence, breach of fiduciary duty, and misrepresentation issues. All of the acts which plaintiffs complain of took place in New York, see Neumeier v. Kuehner, 31 N.Y.2d 121, 128-29, 335 N.Y.S.2d 64, 69-70, 286 N.E.2d 454, 457-58 (1972), and New York certainly has a substantial interest in preventing torts by banks operating within its jurisdiction.
Finally, the parties have not attempted to show that the law of any other potentially interested jurisdiction differs from that of New York. See Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978). We therefore conclude that New York law governs the substantive issues raised on these appeals.
The standard of review governing plaintiffs’ appeals is the same for the causes of actions dismissed on directed verdict —negligence, breach of fiduciary duty, and money had and received — as it is for the misrepresentation cause of action dismissed by judgment n.o.v. See Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163 (2d Cir.1980); O’Connor v. Pennsylvania Railroad Co., 308 F.2d 911, 914 (2d Cir.1962). Moreover, the test to be applied by the court of appeals is the same as that originally applied by the trial judge. O’Connor v. Pennsylvania Railroad Co., 308 F.2d at 914. Specifically,
[T]he trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. [or directed verdict only when (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Mattivi v. South African Marine Corp., “Huguenot", 618 F.2d at 167-68.
We now turn to an analysis of each of plaintiffs’ causes of action.
A. Negligence
Plaintiffs alleged that Chase was negligent, indeed grossly negligent, because it accepted Ferer-London’s proceeds from Ferer-Omaha, and because it allowed Ferer-Omaha to borrow money while speculating on the LME. Plaintiffs allege that these actions continued until April 1974. Whatever their merits, plaintiffs’ claims for negligence and gross negligence are barred by New York’s three-year statute of limitations. See N.Y.Civ.Prac. Law § 214(4) (McKinney 1972). Since the acts complained of ceased in April 1974 and plaintiffs’ actions in state court were not begun until August 1977, the district court’s dismissal of plaintiffs’ claim for negligence and gross negligence was proper.
B. Breach of Fiduciary Duty
Plaintiffs contend that by accepting the funds in the lock box and by accepting the Codelco refunds, Chase has breached a “fiduciary duty” owing to each plaintiff. The weakness in this claim, however, is that neither Williams & Glyn’s nor FererLondon established that Chase owed them a fiduciary duty.
Williams & Glyn’s maintains that the long-standing correspondent bank relationship between it and Chase created a fiduciary relationship between the banks. This is not so. A correspondent bank relationship, standing alone, does not create an agency relationship, see Amigo Foods Corp. v. Marine Midland Bank — New York, 39 N.Y.2d 391, 384 N.Y.S.2d 124, 348 N.E.2d 581 (1976), and Williams & Glyn’s neither pleaded nor proved any other facts which could possibly be construed as creating a fiduciary relationship between it and Chase.
Ferer-London claims that Chase owed it a fiduciary duty because Chase (1) was banker for both Ferer-Omaha and Fer-er-London; (2) had access to the financial records of both corporations; and (3) knew that the two corporations had a “close relationship”. Notwithstanding Ferer-London’s allegations, New York law is clear that the usual relationship of bank and customer is that of debtor and creditor. Solicitor for the Affairs of His Majesty’s Treasury v. Bankers Trust Co., 304 N.Y. 282, 107 N.E.2d 448 (1952); see also Industrial Commissioner v. Five Corners Tavern, Inc., 47 N.Y.2d 639, 643, 419 N.Y.S.2d 931, 934, 393 N.E.2d 1005, 1009 (1979). And in this case, there is no evidence to indicate that either Chase or Ferer-London intended that their relationship be something more than just the debtor-creditor relationship. Cf. National Boulevard Bank of Chicago v. Schwartz, 175 F.Supp. 74, 76-77 (S.D.N.Y.1959), affd, 274 F.2d 823 (2d Cir.1960).
C. Misrepresentation and Rescission of the 1975 Release
Plaintiffs’ amended complaints alleged that Chase misrepresented and concealed material facts with regard to its credit arrangement with Ferer-Omaha and its receipt of Codelco refunds. Plaintiffs further alleged that they were entitled to money damages because they chose to forgo certain collection procedures in the Omaha bankruptcy action in reliance on the facts as Chase misrepresénted them. Additionally, Williams & Glyn’s sought rescission of the release it had given Chase in September 1975, contending the release would not have been given had Williams & Glyn’s known the true facts.
1. Validity of the Release
Although plaintiffs alleged that Chase both misrepresented and concealed material facts, the evidence introduced at trial related only to concealment. Under New York law, omissions of material fact, may rise to a level constituting fraud and serve as a basis for an action for money damages, Goldsmith v. National Container, Inc., 287 N.Y. 438, 40 N.E.2d 242 (1942); or for rescission of a release. Dambmann v. Schulting, 75 N.Y. 55 (1878); Gurnee v. Hasbrouck, 267 N.Y. 57, 195 N.E. 683 (1935). Before such omissions can be la-belled fraudulent, however, there must be a showing that a duty of disclosure existed. Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275 (2d Cir.1975); Gurnee v. Hasbrouck, 267 N.Y. at 62, 115 N.E. at 692.
During the course of negotiations surrounding a business transaction, a duty to disclose may arise in two situations: first, where the parties enjoy a fiduciary relationship, see Frigitemp Corp. v. Financial Dynamics Funds, Inc., 524 F.2d at 283; see also Coface v. Optique Du Monde,
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. Peter Nick THOMA, Defendant-Appellant.
No. 81-1753.
United States Court of Appeals, Tenth Circuit.
Aug. 1, 1983.
George M. Haley of Haley, Stolebarger & Davis, Salt Lake City, Utah, for defendant-appellant.
Brent D. Ward, U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.
Before SETH, Chief Judge, LOGAN and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
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. 10(e). The cause is therefore ordered submitted without oral argument.
Defendant Peter Nick Thoma appeals his conviction on two counts of bank robbery, violations of 18 U.S.C. § 2113(a), and two counts of armed bank robbery, violations of 18 U.S.C. § 2113(d). He alleges that two deficiencies in the district court’s instructions to the jury deprived him of due process of law and constituted reversible error.
Because the instructions must be viewed in the context of the trial, we summarize the evidence presented at the trial. The charges against the defendant stemmed from robberies in Roy, Utah of the Bank of Utah on February 5, 1981, and of the First Security Bank on March 3, 1981. The defendant was arrested on April 9, 1981 after a tip from an acquaintance of the defendant’s common-law wife. At trial, the prosecution presented five witnesses to the robbery. Two witnesses, Janet Wakefield and Pam Ernst, were tellers at the Bank of Utah. Both testified that Ms. Wakefield had been robbed by a man with a beard and a moustache who was carrying a gun in his left hand and a manila envelope in his right hand. Each testified that she had picked the defendant’s picture out of a photographic lineup, and each made an in-court identification of the defendant as the robber. The other three witnesses were employees of First Security Bank. Lana Nielsen and Kathy Butler, tellers at the bank, testified that Ms. Nielsen was robbed by a bearded man in a plaid jacket. Each testified that she had identified the defendant from a photographic lineup, and each made an in-court identification of the defendant. Ms. Nielsen testified that the man had a gun in his left hand and a manila envelope in his right hand. Nalyn Olney, manager of the First Security Bank, testified that he could not identify the robber because he had seen the robber only from the back, but that the robber was wearing a two-tone brown “Pendleton-type” jacket. A red and black plaid jacket that had been received from the defendant’s common-law wife was introduced into evidence; Mr. Olney claimed that this jacket was similar to the one worn by the robber.
The prosecution’s final witness was Linda Hedgers, the defendant’s common-law wife. She testified that the defendant had a beard at the time of the robberies, that he was left handed, and that twice during February and March 1981 he had brought home sums of money in a manila envelope even though he was unemployed. On cross-examination, Ms. Hedgers admitted that she and a man with whom she began to live two days after the defendant’s arrest had made the decision to call the police about the defendant.
The defense presented no evidence. The defense counsel relied upon cross-examination, pointing out discrepancies in the witnesses’ testimony and attempting to cast doubt on the accuracy of their identifications. In closing arguments, the defense counsel emphasized that the prosecution had failed to produce any tangible evidence directly linking the defendant to either robbery. He suggested that the identifications were unreliable because they were based on photographs of the defendant rather than on recollections of the robbery and because the photographic lineup was biased in that the other photographs bore no resemblance to the defendant. Finally, he emphasized the inherent unreliability of eyewitness testimony, particularly in a situation in which the witness is under stress and has little time for observation. At the close of the trial, the defense counsel requested that a cautionary instruction be given on eyewitness identification, and he objected to the presumption of intent instruction offered by the prosecution. The judge refused the defendant’s instruction and gave the prosecution’s instruction.
I
The defendant argues that the judge’s instruction to the jury that “[y]ou may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted” created a conclusive or burden-shifting presumption relieving the prosecution of the burden of proving criminal intent on the part of the defendant beyond a reasonable doubt. He claims that the jurors could have believed that the presumption was mandatory, so that if they found that the defendant committed the acts constituting the crime they would be required to find that the defendant intended to commit the crime. Relying upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), he claims that possibility deprived him of due process.
The instruction in Sandstrom found to create a mandatory presumption and thus to be unconstitutional was: “The law presumes that a person intends the ordinary consequences of his voluntary acts.” 442 U.S. at 515, 99 S.Ct. at 2454. The Court noted that the exact language of the instruction is critical in determining whether a presumption is permissive or mandatory:
“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes.... That determination requires careful attention to the words actually spoken to the jury ..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.”
442 U.S. at 514, 99 S.Ct. at 2454. Because the instruction given in Sandstrom did not inform the jurors that they had a choice whether to infer the existence of intent, the presumption was mandatory and thus impermissible.
To evaluate the character of the jury instruction in this case, it is necessary to view the instruction in context. The instruction challenged by the defendant provided in its entirety:
“Intent ordinarily may not be proved directly because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer the defendant’s intent from the surrounding circumstances. You may consider all of the facts and circumstances in evidence which indicate his state of mind. You may consider it reasonable to draw the inference and find that a person intended the natural and probable consequences of acts knowingly done or knowingly omitted. But, it is entirely up to you to decide the facts from the evidence.”
We do not believe that the instruction could be construed by a reasonable juror to create anything other than a permissive presumption. The instruction does not use mandatory language; it uses the permissive “may.” In addition, the instruction expressly provides that the decision whether to draw the inference or not is “entirely up to” the jurors. A permissive presumption does not violate due process if the conclusion to be inferred can rationally be inferred from the facts. Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). The presumption involved in this case was permissible and did not deprive the defendant of due process of law. See generally United States v. White, 649 F.2d 779, 782 & n. 4 (10th Cir.) (jury instruction created only a permissive inference, not a presumption), cert. denied, 454 U.S. 877, 102 S.Ct. 357, 70 L.Ed.2d 186 (1981).
II
The defendant’s other claim is that he was denied due process by the refusal of the district court to give a requested instruction to the jury on eyewitness identification. The substance of the instruction requested was that eyewitness identification testimony should be received with caution and scrutinized with care if the testimony is weakened by lack of opportunity on the part of the witness to observe the accused, lack of positiveness by the witness, prior inconsistent identification or failure to identify, or qualification of the testimony on cross-examination. The requested instruction also stressed the duty of the prosecution to establish the identity of the defendant as the perpetrator of the crime beyond a reasonable doubt. The defendant claims that the testimony in this case was weakened by the witnesses’ lack of opportunity to observe, lack of positiveness in their identifications, and qualification of their testimony on cross-examination. He contends that because identity was the main issue in this case and because the majority of the evidence against the defendant was eyewitness testimony that had been weakened, the instruction was necessary for the jury’s proper consideration of the evidence.
Courts have expressed concern about the unreliability of eyewitness identification testimony. See United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149 (1967); United States v. Kavanagh, 572 F.2d 9, 11 (1st Cir.1978). Two circuits have held that a cautionary instruction must be given when identification is the key issue in the case and the identification testimony is uncertain or qualified. United States v. Barber, 442 F.2d 517, 528 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 and 404 U.S. 958,92 S.Ct. 347, 30 L.Ed.2d 275 (1971); United States v. Hodges, 515 F.2d 650, 652-53 (7th Cir.1975). Two other circuits have held that it is not error to refuse to give such an instruction. United States v. Evans, 484 F.2d 1178,1188 (2d Cir.1973); United States v. Masterson, 529 F.2d 30, 32 (9th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976). Other circuits have strongly urged the giving of such an instruction when identification is the main issue in a case and evidence of identification is uncertain or qualified, but have stopped short of saying that failure to give the instruction is reversible error in every case. United States v. Telfaire, 469 F.2d 552, 556-57 (D.C.Cir. 1972); United States v. Kavanagh, 572 F.2d 9,12 (1st Cir.1978); United States v. Holley, 502 F.2d 273, 275 (4th Cir.1974); United States v. Dodge, 538 F.2d 770, 784 (8th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977).
In United States v. Cueto, 628 F.2d 1273, 1276 (10th Cir.1980), this Court held that failure to give an instruction that contained cautionary language about the infirmities of eyewitness identification testimony was not reversible error when the government’s case did not depend upon a single eyewitness and identification was corroborated by other evidence. In McGee v. United States, 402 F.2d 434 (10th Cir.1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969), in response to the argument by the defendant that a cautionary instruction was required, this Court said:
“[I]n situations where the conclusiveness of identification has been challenged, it is incumbent upon the court to call attention to the fact that the jury must find beyond a reasonable doubt that it was the defendant on trial who had committed the acts as alleged.”
Id. at 436 (footnote omitted).
When a cautionary instruction on the possible infirmities of eyewitness testimony is requested and not given, on appeal we will focus on the facts of each case to determine whether the instruction was required to fairly present the case to the jury. In particular, we will consider whether identification was the sole or primary issue in the case, whether the evidence consisted mainly of eyewitness identification testimony, and whether that testimony was uncertain, qualified, or suggested a serious question whether the witnesses had an adequate opportunity to observe. In the instant case, the government’s case did not depend upon a single eyewitness, but upon several witnesses whose identifications were not shaken despite some uncertainties and disparities in their testimony and whose testimony was partially supported by the testimony of the defendant’s common-law wife. In addition to standard instructions on the jury’s duty to weigh the credibility of witnesses, the presumption of innocence, and the burden upon the government to prove guilt beyond a reasonable doubt, the district court instructed the jury that “in order to convict [the defendant] — he is presumed to be innocent — you have got to believe beyond a reasonable doubt, as that was explained to you in these instructions, that he was that someone.” The district judge specifically stated that the critical issue in the case was identification. In addition, the defense counsel emphasized the discrepancies in the testimony and stressed that eyewitness identification testimony is inherently unreliable. While actions by counsel cannot always cure deficiencies in jury instructions, we think that the jury’s attention was sufficiently focused on the issue of identification and the possibility of misidentification that the failure to give a cautionary instruction in this case was not reversible error.
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:
|
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.
UNITED STATES v. HOUGHAM et al.
No. 24.
Argued October 18, 1960.
Decided November 7, 1960.
Wayne G. Barnett argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Doub, Morton Hollander and Anthony L. Mondello.
Calvin H. Conron argued the cause for respondents. With him on the brief was W. E. James.
Me. Justice Black
delivered the opinion of the Court.
Section 16 of the Surplus Property Act of 1944 gave priority preferences to veterans in the purchase of surplus war materials. 58 Stat. 765. Section 26 authorized the United States to recover damages against any person who obtains such property from the Government by “fraudulent trick, scheme, or device . . . .” The complaint in this case charged that respondent Hougham, a non veteran, combined with the other respondents, who are veterans, and obtained for his own business purposes hundreds of items of surplus property, including trucks, trailers and other equipment, by fraudulent use of the veteran respondents’ priority certificates. After hearings, the District Court found respondents guilty of fraud as charged and awarded damages in the amount of $8,000. Both sides appealed. The Court of Appeals affirmed, rejecting both the Government’s contention that the damages awarded were inadequate and the respondents’ contentions that the finding of fraud was clearly erroneous and that the claims were barred by the statute of limitations. 270 F. 2d 290. Because the case raises important questions concerning the interpretation and application of the Surplus Property Act, we granted the Government’s petition for certiorari. 361 U. S. 958.
The respondents first contend that the entire controversy here has been settled, is therefore moot, and that the Government is estopped from further pressing claims against them. This contention rests upon the fact — set out in respondents’ brief and not disputed by the Government — that after the trial court judgment was entered and before it was affirmed by the Court of Appeals, the Government accepted from respondents promissory notes totalling $8,000, the amount of the trial court judgment. The contention is that this fact alone renders the case moot or at least creates some sort of estoppel against the Government. We disagree. It is a generally accepted rule of law that where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the unsatisfactory judgment does not, standing alone, amount to an accord and satisfaction of the entire claim. See, for example, Embry v. Palmer, 107 U. S. 3; Erwin v. Lowry, 7 How. 172, 183-184. This case provides a perfect example of the good sense underlying that rule. For here it was the respondents themselves who proposed payment of the $8,000, asserting expressly as their purpose in so doing the obtaining of a “Full Release of Judgment Liens” filed in the Counties of Los Angeles and Kern. The Government did nothing more in the entire transaction than accept the notes and execute the requested release. Since that release was expressly denominated only as a “Full Release of Judgment Liens” for the Counties of Los Angeles and Kern, it simply is not and cannot properly be interpreted to constitute a full release of all the Government’s claims against respondents. Moreover, since the. transfer of the notes occurred prior to the decision of the Court of Appeals, it is clear that neither of the parties regarded that transfer as an accord and satisfaction of the entire controversy for both pursued their appeals in that court. Thus respondents’ contention here is totally inconsistent with their position in the Court of Appeals where they sought to avoid all liability to the Government, including liability for the $8,000 they had already paid. For that position must necessarily have been predicated upon the view that the payment was without-prejudice to the rights of either party as those rights might come to be established by subsequent judicial decree. Under such circumstances, the contention that the Government has lost its right to press its claim for the full amount of damages it believes due is wholly untenable.
We find it unnecessary to discuss at length respondents’ second contention — that the claims asserted by the Government are barred by the statute of limitations. It is sufficient to say that the courts below were entirely correct in rejecting that contention for, resting as it does upon the assumption that recoveries under § 26 (b) are penalties, it is inconsistent with our holding in Rex Trailer Co. v. United States, 350 U. S. 148.
We therefore proceed to the principal controversy — the question of the adequacy of the damages awarded to the Government. Section 26 (b) provides in relevant part that those who obtain property by the kind of fraud established here:
“(1) shall pay to the United States the sum of $2,000 for each such act, and double the amount of any damage which the United States may have sustained by reason thereof, together with the costs of suit; or
“(2) shall, if the United States shall so elect, pay to the United States, as liquidated damages, a sum equal to twice the consideration agreed to be given by such person to the United States or any Government agency; or
“(3) shall, if the United States shall so elect, restore to the United States the property thus secured and obtained and the United States shall retain as liquidated damages any consideration given to the United States or any Government agency for such property.”
In its complaint as originally filed, the Government claimed recovery as authorized by §26 (b)(1) — $2,000 for each fraudulent act plus double the amount of any actual damages. Subsequently, the Government attempted to file a First Amended Complaint claiming liquidated damages under § 26 (b) (2). Upon indication of the trial judge that the claim in the original complaint under § 26 (b)(1) amounted to an irrevocable election of remedies, but without any formal ruling to that effect, the Government withdrew the First Amended Complaint and filed a Second Amended Complaint in which it reverted to its original claim under § 26 (b)(1). Still later, however, following pretrial proceedings under Rule 16 of the Federal Rules of Civil Procedure, the district judge, with the approval of counsel for both parties, entered a pretrial conference order which provided, “[Tjhis order shall supplement the pleadings and govern the course of the trial of this cause, unless modified to prevent manifest injustice.” And the order expressly enumerated the “issues of law” that remained “to be litigated upon the trial.” One of the issues so reserved was the legal correctness of the Government’s argument that it was entitled to recover “double the amount of the sales price of the vehicles described in the Second Amended Complaint,” that it was “entitled to make its election [as between § 26 (b)(1) and § 26 (b)(2)] at any time prior to judgment” and that it did then elect “in the event of judgment in its favor, to receive as liquidated damages a sum equal to twice the consideration agreed to be given to the United States.” The District Court ultimately decided this legal issue against the Government, holding that the original complaint constituted an irrevocable election, and proceeded to award damages of $8,000 under §26 (b)(1). The Court of Appeals affirmed this judgment on a different ground. It held that the refusal of the District Court to permit recovery under § 26 (b) (2) was within its power to determine the appropriate remedy under § 26 (b), asserting that no issue as to election of remedies was even involved in the case. 270 F. 2d, at 293.
The Government contends that denial of recovery under § 26 (b) (2) cannot be justified on either of the theories adopted below. Respondents contend that the Government waived its right to urge this contention-by voluntarily proceeding to judgment on the Second Amended Complaint. This contention is predicated upon the failure of the Government to get a formal ruling on its First Amended Complaint before withdrawing it and filing the Second Amended Complaint. But, as shown above, the pretrial order and the conclusions of law of the District Court both show that the Government urged its right to change its election up to the time judgment was rendered. That pretrial order, as authorized by Rule 16, conclusively established the issues of fact and law in the case and declared that the issues so established should “supplement the pleadings and govern the course of the trial . . . .” One of these supplementary issues was the Government’s contention that it was entitled to recover under §26 (b)(2), rather than under §26 (b)(1) as claimed in the Second Amended Complaint. Thus the pretrial order changed the claim in that complaint from § 26 (b)(1) to § 26 (b)(2) insofar as the Government had the power to change its election, and posed an issue which required adjudication by the District Court. That such was the effect of the order is clear from the language of Rule 16 which provides that the court, after pretrial conference, “shall make an order which recites . . . the amendments allowed to the pleadings . . . and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Since the pretrial order here reserved the legal question as to the Government’s right to change its election and since the court expressly decided that question against the Government, the question most certainly was not waived and must here be determined.
Thus, we come to the question whether the courts below were correct in holding that the Government was not entitled to damages under § 26 (b) (2). With respect to the theory adopted by the District Court that the Government’s original complaint constituted an irrevocable election of remedies, we can find nothing either in the language of § 26 (b) or in its legislative history which lends the slightest support to such a construction. This fact leads naturally to the conclusion that the ordinary liberal rules governing the amendment of pleadings are applicable. The applicable rule is Rule 15 of the Federal Rules of Civil Procedure, which was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result. Despite respondents’ argument to the contrary, we see this case as one where there plainly was no such prejudice. In such a situation, acceptance of respondents’ contention on this point would subvert the basic purpose of the Rule. “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U. S. 41, 48. We therefore conclude that under the circumstances of this case the Government had a right to amend its pleadings and that the District Court erred in refusing to permit such amendment.
The alternative theory of the Court of Appeals appears, upon examination, to be equally untenable. The Court of Appeals interpreted § 26 (b) as placing power in the District Court to determine, according to the evidence presented in any particular case, which of the three subsections would be most appropriate and to require the Government to accept judgment under that subsection. That interpretation collides with the express language of § 26 (b) which provides for recovery under any one of the three subsections “if the United States shall so elect.” (Emphasis supplied.) Since the language of the section is conclusive on this point, the theory adopted by the Court of Appeals must also be rejected.
The respondents’ final contention is that in any event they are entitled to a new trial. Obviously, there need be no new trial on the fraud issue. But respondents also urge that there is no support in the record for a judgment fixing the Government’s recovery under § 26 (b) (2) at “twice the consideration agreed to be given” for the vehicles. There was no consideration “agreed to be given,” the argument proceeds, because all the transactions involved cash sales at a price fixed by the Government. This argument, while ingenious, is not sound. Cash sales, like others, must follow an agreement of the parties with regard to consideration “to be given.” Respondents’ contention to the contrary would, if accepted, allow any purchaser from the Government to effectively avoid liability under § 26 (b) (2) simply by being careful to make all of its fraudulent dealings in cash. Plainly, however, the Government suffers just as much from a fraudulent cash sale as from a fraudulent credit sale. An interpretation of § 26 (b) (2) which allows recovery for the one but not for the other cannot be accepted. The respondents’ contention for a new trial must be rejected.
The judgment is therefore reversed and the cause remanded to the District Court with directions to enter judgment for the United States under § 26 (b) (2).
It is so ordered.
The language of the trial judge on this point was unequivocal: “This Court rules that the plaintiff United States can only receive liquidated damages under the provisions of Section 26 (b) (2) if it elects to receive only such damages originally in the action; that since the United States sought damages under the provisions of Section 26 (b) (1) in the original complaint, that such is an irrevocable election; that the plaintiff United States cannot thereafter amend its complaint to seek liquidated damages under the provisions of Section 26 (b) (2), or otherwise elect to receive liquidated damages under the provisions of Section 26 (b) (2), but that the United States is thereafter limited as the measure of its recovery for liquidated damages to those liquidated damages set forth in Section 26 (b) (1).”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_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.
Elizabeth Margaret DALLISON and Max Dallison, Appellants, v. SEARS, ROEBUCK AND CO., a corporation, Appellee.
No. 6979.
United States Court of Appeals Tenth Circuit.
Dec. 27, 1962.
Robert W. Johnson, Aurora, Colo., for appellant.
Thomas E. McCarthy, Denver, Colo. (Robert S. Mitchell, Denver, Colo., on the brief), for appellee.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
HILL, Circuit Judge.
Appellants, Elizabeth Margaret and Max Dallison, brought this diversity action against appellee, Sears, Roebuck and Co., to recover damages for personal injuries suffered by Elizabeth as the result of the burning of a nightgown which she was wearing. The complaint alleged a breach of implied warranty in the sale of the nightgown under the provisions of the Colorado Uniform Sales Act. Appellee’s defense, insofar as material to this appeal, was that the injuries sustained by Elizabeth were solely and proximately caused by her own negligence.
A jury trial resulted in a verdict for the appellee and judgment was rendered thereon in its favor. The appeal is from that judgment and the order denying appellants’ motion for a new trial. The only issue involved is whether the trial court erred in instructing the jury on negligence as a defense to the action.
The nightgown in question was purchased by Elizabeth in the fall of 1959 at appellee’s retail store in Southgate Shopping Center in Colorado Springs, Colorado. She also purchased a second nightgown at the same time. According to her testimony, both of the nightgowns appeared to be made out of the same material and appeared to be identical except for the fact that one was pink and the other blue. The two nightgowns were used along with others that she already owned and were given essentially the same type of laundry treatment and use as she had always given to similar items of wearing apparel.
Elizabeth was wearing the blue nightgown when she retired to bed at approximately 11:00 p. m. on January 12, 1960. She apparently went to sleep soon thereafter but was awakened at about 11:40 p. m. when her husband, Max, returned home from a bowling contest. She heard her husband out in the kitchen and requested him to prepare some scrambled eggs and toast, which he did, and brought them to her in the bedroom. Elizabeth remained in bed in a sitting up position while she ate the eggs and toast and, after consuming them, asked Max to give her a tuinol sleeping pill from the night stand on his side of the-bed. He complied with this request and then left the bedroom and went to the livingroom to look at the evening paper.
Elizabeth took the sleeping pill and' right afterward started to light a cigarette. According to her testimony, a portion of the ignited head of the match which she intended to use to light the cigarette flew off and lit on her gown, near the waist line. She further testified that when the ignited portion of the matchhead came in contact with the gown, it ignited rapidly and burned in-such a fashion that she was unable to-extinguish the fire and that she screamed' for her husband who came to her assistance and put out the fire but only after a major portion of the gown had burned,, causing her severe and serious injuries,, consisting of third degree burns upon approximately 40% of her body. She also testified that only a fraction of a second of time was consumed between the time she struck the match and when she first observed the flames on the gown and that it could not “have been more-than around 5 seconds” from the time she struck the match until she heard her husband come into the room after she had screamed for him. Max testified that “probably five minutes or less”' elapsed between the time he gave Elizabeth the sleeping pill and when she-screamed for his assistance.
It was established at the trial that. Elizabeth was in the habit of taking three-grain tuinol sleeping pills, as she did on the night in question, and had taken them on the average of 5 or 6-times a week for several years prior to-the fire. Appellee presented expert testimony that tuinol is one of the most, rapidly acting barbiturates available and that a three-grain tuinol sleeping pill is a heavy dosage and is referred to as a hypnotic but that its effects would be delayed by the presence of food in the stomach. In answer to a hypothetical question, the expert witness testified that in his opinion a woman of Elizabeth’s .age and physical makeup, after taking the sleeping pill and under the circumstances, would have been only partially conscious at the time the fire started, would have reduced sensitivity to feeling heat and pain and, generally, would have ■diminished reflexes. Appellee also presented expert testimony to the effect that the pink nightgown purchased by Elizabeth, and which was not burned, was 100 per cent cotton fabric of a type generally and commonly used for wearing .apparel. This expert witness testified that a sample of the pink gown was tested for burning characteristics and, as a result of such test, he concluded that it was of normal flammability and would not ignite and burst into flame upon momentary contact with a lighted match.
On these facts, appellants sought to recover damages claiming that Elizabeth’s injuries were directly and proximately caused by a momentary contact between a matchhead and the blue nightgown she was wearing, which, in violation of an implied warranty of fitness for the purpose intended, was so highly combustible as to immediately burst into flame. On the other hand, appellee’s claim or theory of the case was that the nightgown was not unusual or dangerously combustible and her injuries were solely and proximately caused by her own negligence in smoking and handling matches in bed, late at night, and while in a semi-conscious state induced by the taking of a highly potent sleeping pill or barbiturate.
The lower court, in its instructions, advised the jury of these opposing claims or theories of the case by the parties and gave the instructions which appellants objected to on the ground that negligence was not a defense to their action. Appellants also specify as error the court’s refusal to give their requested instruction to that effect. Thus, we are squarely presented with the question of whether negligence is a proper defense in an action for breach of warranty.
It is clear that under Colorado law each party is entitled to have the jury properly instructed on his theory of the case, providing such theory is supported by competent evidence, and it is the duty of the trial judge to give instructions that disclose each party’s theory. It is also clear that, as a general rule, it is incumbent upon the plaintiff in an action for breach of warranty to prove that the injuries were proximately caused by the breach of such warranty. As previously stated, appellee’s theory of the case was and is that the injuries suffered by Elizabeth were not proximately caused by any breach of implied warranty of fitness as to the nightgown but, rather, were solely and proximately caused by her own negligence in smoking and handling matches in bed under the circumstances discussed above. Thus, proximate cause was one of the important issues raised by the pleadings and an examination of the record clearly discloses competent evidence to support appellee’s theory on the issue. We agree with appellee that, under Colorado law, it was entitled to have the jury properly instructed as to its theory on that issue and this the court did. In so instructing, the court was careful to confine the issue to negligence as distinguished from contributory negligence.
Appellants agree that under the rule prevailing in Colorado each party is entitled to have the jury instructed on his theory of the case, but they contend that such rule does not apply here because appellee’s theory is nothing more than the assertion of negligence as a defense and negligence is not a proper defense in an action for breach of warranty. In making this contention, appellants argue that in ruling upon the question the courts have used the terms “negligence” and “contributory negligence” interchangeably and have actually made no distinction between the two terms. Assuming that this is the case, it is of little help to them. As stated by one author, “The rulings of the courts on this question of contributory negligence are less than entirely harmonious”, and such statement is, indeed, borne out by the cases. The weight of authority, and it is not a great weight, appears to be that contributory negligence on the part of the buyer of a product sold under a warranty of fitness is not a defense in an action against the manufacturer or seller of the product for breach of that warranty. This is said to be “arguably the better view.” But, there is respectable authority in support of the view that contributory negligence is a proper defense. In at least one jurisdiction, there are cases going both ways on the •subject. Neither of the parties, however, cite us to any Colorado case ruling upon the question and our own independent research reveals none.
In the absence of a decision by the Colorado Supreme Court on the question, we are governed by the well established rule of this Court that we will accept the considered determination of the trial court as to the local law, unless clearly convinced to the contrary. This rule was well stated by Judge Pickett in the case of Mitton v. Granite State Fire Ins. Co., 10 Cir., 196 F.2d 988, at page 992:
“ * * * The Colorado courts have not passed upon the right to interest in cases similar to the one before us and we are unwilling to ■overrule the considered appraisal of the trial judge. His view of the Colorado law is entitled to great weight and should not be overruled unless it is clearly erroneous. (Citation of authorities)”
The Supreme Court also applies this principle in cases where the state courts have not decided the state question presented In this case, we have the considered determination of the Trial Judge, who it may be noted is also a former state district judge, that negligence is a defense to an action for breach of warranty in Colorado. We are unwilling to say that his determination on that issue is clearly erroneous. For these reasons, we must conclude that the instructions given by the trial court when viewed in their entirety were not prejudicial to the appellants.
The judgment is affirmed.
. Colo.Rev.Stat.1953, 121-1-15, provides in part as follows:
“Implied warranties of quality. — Subject to the provisions of this article and of any statute in that behalf, there is no implied warranty or condition as to the quality of fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or- • judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purposes. * * *
. “Now, as defense to this action, the defendant, Sears, Roebuck, denies there was a breach of implied warranty and claims the gown was fit for the purpose for which it was sold, and the defendant also contends in its pleadings that the injuries and damages suffered by the plaintiff, Elizabeth Mar-garet Dallison, were solely and proximately caused by her own negligent conduct and failure to exercise due care for her own safety.”
“On the other hand, if you find that the nightgown was not of such an inflammable nature of [or] that it was reasonably fit for the purpose for which it was intended to be used, or if you find from the evidence that the plaintiff was negligent, that is, the plaintiff, Elizabeth Margaret Dallison, was negligent in the use to which the nightgown was put, your verdict must be for the defendant.”
“If you should find, however, that the proximate cause of the Plaintiff’s injuries was not the breach of the implied warranty, but was, rather, the negligence of the plaintiff, Elizabeth Margaret Dallison, then your verdict must be for the defendant.”
“The defendant, as I have stated, not only denies a breach of an implied warranty, but claims that the injuries sustained by the plaintiff, Mrs. Dallison, were caused by her own negligence, which the defendant says was the proximate cause of her injuries.”
“Negligence, ladies and gentlemen of the jury, is the failure or the omission to do something which under the circumstances a reasonably prudent person would do. It is the absence of ordinary care which is required to be exercised according to the circumstances.”
. “You are hereby instructed that whether or not the Plaintiff Elizabeth Margaret Dallison was negligent or contributorily negligent in the use of the gown purchased from Sears, Roebuck and Company is of no consequence and does not constitute a defense to the Plaintiff’s action for breach of Implied Warranty.”
. Behr v. McCoy, 138 Colo. 137, 330 P.2d 535; Haller v. Gross, 135 Colo. 218, 309 P.2d 598; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862; Neilson v. Bowles, 124 Colo. 274, 236 P.2d 286.
. Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309; Jacquot v. Wm. Filene’s Sons Co., 337 Mass. 312, 149 N.E.2d 635; 1 Hursh, American Law of Products Liability, § 1:21, p.p. 61-64.
. 1 Hursh, American Law of Products Liability, § 3:9, at page 416.
. Hansen v. Firestone Tire and Rubber Company, 6 Cir., 276 F.2d 254; Brown v. Chapman, 9 Cir., 304 F.2d 149, affirming Chapman v. Brown, 198 F.Supp. 78 (Hawaii, 1961); Young v. Aeroil Products Company, 9 Cir., 248 F.2d 185; Frank R. Jelleff, Inc. v. Braden, 98 U.S.App.D.C. 180, 233 F.2d 671; Rasmus v. A. O. Smith Corporation, 158 F.Supp. 70 (N.D.Iowa, 1958); Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309; Jarnot v. Ford Motor Company, 191 Pa.Super. 422, 156 A.2d 568.
. 1 Frumer and Friedman, Products Liability, § 16.01 [3], at page 307.
. Arnaud’s Restaurant v. Cotter, 5 Cir., 212 F.2d 883, cert. denied, 348 U.S. 915, 75 S.Ct. 295, 99 L.Ed. 717 (by implication) ; Crotty v. Shartenberg’s New Haven, Inc., 147 Conn. 460, 162 A.2d 513; Sapiente v. Waltuch, 127 Conn. 224, 15 A.2d 417 (by implication); Sloan v. F. W. Woolworth Co., 193 Ill.App. 620; Nelson v. Anderson, 245 Minn. 445, 72 N.W.2d 861; Missouri Bag Co. v. Chemical Delinting Co., 214 Miss. 13, 58 So.2d 71, 33 A.L.R.2d 501; Heath v. Channel Lumber Co., 25 N.J.Super. 6, 95 A.2d 425; Eisenbach v. Gimbel Bros., 281 N.Y. 474, 24 N.E.2d 131; Razey v. J. B. Colt Co., 106 App.Div. 103, 94 N.Y.S. 59; Di Vello v. Gardner Machine Co., Ohio Com.Pl., 102 N.E.2d 289.
. Compare Simmons v. Wichita Coca-Cola Bottling Company, 181 Kan. 35, 309 P.2d 633, and Challis v. Hartloff, 136 , Kan. 823, 18 P.2d 199, with Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850, and Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413, 415. However, see 5 Kan.L.Rev. 128, 130, for a possible reconciling of these cases.
. Woodmont, Inc. v. Daniels, 10 Cir., 290 F.2d 186, 188, Hamblin v. Mountain States Telephone & Telegraph Co., 10 Cir., 271 F.2d 562; Cranford v. Farnsworth & Chambers Company, 10 Cir., 261 F.2d 8.
. Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480; MacGregor v. State Mutual Life Assurance Co., 315 U.S. 280, 62 S.Ct. 607, 86 L.Ed. 846.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine 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.
S.S. PHILIPPINE JOSE ABAD SANTOS and National Development Co., Appellants, v. Jessie P. BANNISTER, Appellee.
No. 21211.
United States Court of Appeals Fifth Circuit.
July 16, 1964.
Leon Sarpy, Paul A. Nalty and J. Dwight LeBlanc, Jr., New Orleans, La., Chaffe, McCall, Phillips, Burke, Toler' lz Hopkins, New Orleans, La., of counsel, for appellants.
Shelly M. Barto, John R. Martzell, New Orleans, La., Ungar & Dulitz, New Orleans, La., of counsel, for appellee.
Before RIVES, WISDOM and BELL, Circuit Judges.
RIVES, Circuit Judge:
A longshoreman brought this libel in the District Court for the Eastern District of Louisiana against a vessel, the SS PHILIPPINE JOSE ABAD SANTOS, and its owner, the National Development Company, for injuries received while unloading the vessel in New Orleans. Since the owner is not qualified to do business in Louisiana and is without an assigned agent for service of process there, service was made on the Louisiana Secretary of State pursuant to the Louisiana Watercraft Statute, LSA-R.S. 13:3479-80. The respondents moved to quash service, asserting that the Watercraft Statute is unconstitutional. The motion was denied, and this appeal was certified and granted in accordance with 28 U.S.C. § 1292(a) (3), (b).
The respondents contend that the issues presented by this case are whether the Watercraft Statute is unconstitutional as being in conflict with the commerce clause and federal admiralty jurisdiction, and whether, if constitutional, the statute’s use is precluded by the Supreme Court Admiralty Rules.
The Louisiana Watercraft Statute provides for substituted service on the Louisiana Secretary of State in actions against non-resident vessel owners if the suit grows out of any accident or collision while the owner is operating the vessel in Louisiana. It is patterned after the Louisiana non-resident motorist statute, LSA-R.S. 13:3474-75. The Louisiana Watercraft Statute has been held to be valid in three previous district court opinions. Similar non-resident vessel-owner statutes of other states have been uniformly upheld and applied. Although the respondents in this case do not attack the statute on due process grounds, such attacks have been rejected in the past on the theory that there is no substantial difference between a nonresident vessel-owner statute and a nonresident motorist statute.
Admiralty suits in federal courts, being of a nondiversity nature, .are governed by federal substantive and procedural law. Federal law, however, often adopts state law either by express or implied reference or by virtue of the interstitial nature of federal law. So the initial question to be decided is whether it was proper for the district court to apply the state substituted service statute in the instant case.
The Rules of Practice in Admiralty and Maritime Cases were promulgated by the Supreme Court in 1920. 'The present Admiralty Rule 1, which is substantially the same as the Rule 1 .adopted in 1844, provides:
“Rule 1. Process on filing libel
“No mesne process shall issue from the District Court in any civil cause of admiralty and maritime jurisdiction until the libel, or libel of .information, shall have been filed in •the clerk’s office from which such process is to issue. All process shall be served by the marshal or by his deputy, or, where he or they are interested, by some discreet and disinterested person appointed by the court.”
.Admiralty Rule 2 states:
“Rule 2. Suits in personam — process in — arrest in same
“In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit, or by a simple warrant of arrest of the person of the respondent in the nature of a capias, as the libellant may, in his libel or information pray for or elect; in either case with a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the district. But no warrant of arrest of the person of the respondent shall issue unless by special order of the court, on proof of the propriety thereof by affidavit or otherwise.”
No other admiralty rules deal with service of process. It is significant to this case that although Rule 1 states that the marshal shall serve process, neither Rule 1 nor Rule 2 designates who is an authorized agent to receive process. Prior to the promulgation of the Federal Rules of Civil Procedure, the Supreme Court in In re Louisville Underwriters, 1890, 134 U.S. 488, 10 S.Ct. 587, 33 L.Ed. 991, was faced with whether service could properly be made on an agent appointed by a corporation so as to meet state requirements for doing business there. The Supreme Court noted:
“In the present case, the libellee had, in compliance with the law of Louisiana, appointed an agent at New Orleans, on whom legal process might be served, and the monition was there served upon him. This would have been a good service in an action at law in any court of the state or of the United States in Louisiana. * * * And no reason has been, or can be suggested why it should not be held equally good in admiralty.”
As the court in Doe v. Springfield Boiler & Mfg. Co., 9 Cir. 1900, 104 F. 684, 686, summarized, “Service of monition in admiralty may be made under the provisions of a state statute regulating the mode of service in actions at law and in equity.”
Since the adoption of the Federal Rules of Civil Procedure, however, the tendency has been to use the Civil Rules “to fill the gaps in, or to improve upon, the admiralty practice”:
“There is a general trend to apply the liberal rules of the F.R.C.P. where there is no specific rule in the Admiralty Rules and the rule of the F.R.C.P. sought to be applied is not inconsistent with any provision of the Admiralty Rules or any justifiable construction thereof.”
This has been particularly true with respect to service of process and Rule 4 of the Federal Rules of Civil Procedure. Since the Admiralty Rules are silent as to who is an authorized agent to receive process *and since Civil Rule 4(d) (7) specifically adopts state law, the Seventh Circuit was correct in applying a state non-resident vessel-owner statute:
“At the outset, we reject the argument of those respondents that valid process can never be served under the Illinois Act in admiralty cases because the Act provides a method of service of process which conflicts with the provision of Admiralty Rule 1, 28 U.S.C., that all process ‘shall be served by’ a United States marshal, or deputy marshal. The Illinois Act provides that the operation of watercraft in waters of that State by a non-resident constitutes a designation by such non-resident of the Secretary of State of Illinois as his agent upon whom process may be served.
“In a proper case, and upon a proper finding of an implied designation of the Secretary of State as the agent of an non-resident for receipt of process, there is sufficient compliance with Admiralty Rule 1 when the marshal serves process upon that State official. Here, process for both Irish and Pinkster was served by the marshal upon the Secretary of State, and a copy of the libel was then mailed to each of those respondents as the Illinois statute required. We think the rule is no bar to that procedure if the libel is a proper ease for substituted service under the provisions of the Act.”
The Louisiana Watercraft Statute applies as adopted federal law. Thus, the district court’s use of the statute was in no way contrary to federal admiralty jurisdiction or the commerce clause.
The district court’s denial of the motion to quash service is
Affirmed.
. The Louisiana Watercraft Statute, La. Bev.Stat. 13:3479-80, reads as follows:
“§ 3479. The operation, navigation or maintenance by a non-resident or nonresidents of a boat, ship, barge or other water craft in the state, either in person or through others, and the acceptance thereby by such non-resident or non-residents of the protection of the laws of the state for such water craft, or the operation, navigation or maintenance by a non-resident or non-residents of a boat, ship, barge or other water craft in the state, either in person or through others, other than under the laws of the state, shall be deemed equivalent to an appointment by each such non-resident of the Secretary of State, or his successor in office or some other person in his office during his absence he may designate, to be the true and lawful attorney of each such non-resident for service of process, upon whom may be served all lawful process in any suit, action or proceeding against such non-resident or non-residents growing out of any accident or collision in which such non-resident or non-residents may be involved while, either in person or through others, operating, navigating or maintaining a boat, ship, barge or other water craft in the state; and such acceptance or such operating, navigating or maintaining in the state of such water craft shall be a signification of each such non-resident’s agreement that any such process against him which is so served shall be of the same legal force and effect as if served on him personally.” “3480. Service of citation in any case provided in B.S. 13.3479 shall be made by serving a copy of the petition and citation on the Secretary of State, or his successor in office, and such service shall be sufficient service upon any such non-resident ; provided that notice of such service, together with a copy of the petition and eitation are forthwith sent by registered mail by the plaintiff to the defendant, or actually delivered to the defendant, and the defendant’s return receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be rendered against any such non-resident. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action.”
. Paige v. Shinnihon Kishen, E.D.La.1962, 206 F.Supp. 871, Tardiff v. Bank Line, Ltd., E.D.La.1954, 127 F.Supp. 945; Goltzman v. Rougeot, W.D.La.1954, 122 F.Supp. 700; cf. Sioux City & New Orleans Barge Lines, Inc. v. Upper Miss Towing Corp., S.D.Tex.1963, 221 F.Supp. 737, 739. See generally, Kierr, “Use of State Statutes to Effect Service on a Non-Resident Vessel Owner,” 8 La.Bar J. 113 (1960).
. See Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330 (Ill. Rev.Stat. c. 110, § 263b); Franklin v. Tomlinson Fleet Corp., N.D.Ill.1957, 158 F.Supp. 850 (same); Frase v. Columbia Transp. Co., N.D.Ill.1957, 158 F.Supp. 858 (same); Coyle v. Pope & Talbot, Inc., E.D.Pa.1962, 207 F.Supp. 685 (12 P.S.Pa. §§ 336, 337); Edmundson v. Hamilton, Fla.1962, 148 So.2d 262, 264-265 (Fla.Stat.Ann. § 47.162).
. See authorities cited in notes 2 and 3, supra. Compare Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.
. See generally, Hart & Wechsler, The Federal Courts and the Federal System 435-36 (1953); Hill, “State Procedural Law in Federal Nondiversity Litigation,” 69 Harv.L.Rev. 66 (1955); Mishkin, “The Variousness of ‘Federal Law’,” 105 U.Pa. L.Rev. 797 (1957); Note, 69 Yale L.J. 1428 (1960); Fahs v. Martin, 5 Cir. 1955, 224 F.2d 387, 392.
. The present Rule 2 is the same as the Rule 2 adopted in 1844, except that the text of the first sentence has been rearranged and the Rule 7 of 1844 was made the second sentence of the present rule.
. 134 U.S. at 493, 10 S.Ct. at 589.
. Letter of Transmittal of Proposed Amendments to Rules of Civil Procedure by the Advisory Committee on Admiralty Rules, printed in Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District-Courts p. 2 (1964).
. Monsieur Henri Wines, Ltd. v. S.S. Covadonga, D.N.J.1963, 222 F.Supp. 139, 140; accord D/S A/S Flint v. Sabre Shipping Corp., E.D.N.Y.1964, 228 F. Supp. 384, 389.
. See, e.g., Seawind Compania, S.A. v. Crescent Line, Inc., 2 Cir. 1963, 320 F.2d 580; cases cited note 9, supra.
. Thus there is no conflict between the Admiralty Rules and the Watercraft Statute, so that 28 U.S.C. § 2073, which states-that, “All laws in conflict with such [admiralty] rules shall be of no further force or effect after such rules have taken effect,” is of no relevance.
. Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330, 333; accord Paige v. Shinnihon Kisken, E.D. La.1962, 206 F.Supp. 871.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. CLINICAL LEASING SERVICE, INC., et al., Defendants, Melvin Soll and Leroy T. Brinkley, Defendants-Appellants.
No. 91-3939
(Summary Calendar).
United States Court of Appeals, Fifth Circuit.
Dec. 10, 1992.
Adolph Swimmer, Atlanta, GA, Kenneth Benton, Philadelphia, PA, for Soli.
Kathy McAlice, Mesirov, Gelmar, Joffe, Cramer, & Jameson, Philadelphia, PA, for Brinkley.
Leroy T. Brinkley, pro se.
Thomas L. Watson, Asst. U.S. Atty., Harry Rosenberg, U.S. Atty., New Orleans, LA, for plaintiff-appellee.
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The government brought suit against defendants, Melvin Soil and Leroy Brinkley, seeking to hold them personally liable for fines imposed against their corporation, Clinical Leasing Service, Inc. (“Clinical”), for violations of the Federal Controlled Substances Act (“FCSA”), 21 U.S.C. § 842 et seq. (1988). A jury found Soli and Brinkley liable for the corporation’s fines on the grounds that Clinical was the alter ego of Soli and Brinkley, and that Clinical was used by them to frustrate a legislative purpose. Soil and Brinkley appeal, arguing that the district court improperly instructed the jury and that the district court’s actions and comments denied them a fair trial. Finding no error, we affirm.
I
The government originally filed suit against Clinical, seeking fines for registration and recordkeeping violations of the FCSA. See 21 U.S.C. § 842, et seq. (1988). The district court imposed a $337,000 civil fine on the corporation. Soil and Brinkley made a settlement offer to pay the fine over several years, but the government refused. The government then seized the available assets of Clinical, but these were valued at less than $15,000. Consequently, the government filed suit against Clinical’s only shareholders, Soli and Brinkley, seeking to find them personally liable for the balance of the fines. The government sought to pierce the corporate veil on two theories: (1) alter ego and (2) frustration of a legislative purpose. The jury found in favor of the government on both theories.
Soli and Brinkley now challenge the verdict, contending that the district court erred in:
(a) improperly instructing the jury on the alter ego theory;
(b) allowing the government to pierce the corporate veil after Soli and Brinkley had made an offer of settlement; and
(c) terminating the direct examination of Soil during trial, and making prejudicial comments during voir dire.
II
A
Soil and Brinkley argue that the district court failed to instruct the jury properly on the Louisiana law of piercing the corporate veil under the alter ego theory. We review jury instructions for abuse of discretion. See Koonce v. Quaker Safety Products & Mfg. Co., 798 F.2d 700, 719 (5th Cir.1986) (“The district judge ‘has wide discretion to select his own words and to charge in his own style.’ ” (quoting Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 262 (5th Cir.1985))). “If the jury instructions are ‘comprehensive, balanced, fundamentally accurate, and not likely to confuse or mislead the jury, the charge will be deemed adequate.’ ” Id. (quoting Scheib v. Williams-McWilliams Co., 628 F.2d 509, 511 (5th Cir.1980)). “The crucial issue on review is whether the jury had an understanding of the issues and its duty to determine those issues.” Id.
Under Louisiana law, shareholders are generally not held individually responsible for debts of the corporation. Kingsman Enterprises v. Bakersfield Elec. Co., 339 So.2d 1280, 1282 (La.App. 1st Cir.1976). However, where the corporation is merely the alter ego of the shareholder, Louisiana courts have ignored the corporate form and have held the individual shareholder or shareholders liable. Id. In applying this alter ego doctrine, Louisiana courts have traditionally focused on the following five elements: (1) commingling of corporate and shareholder funds; (2) failure to follow statutory formalities for incorporation and the transaction of corporate affairs; (3) undercapitalization of the corporation; (4) failure to provide separate bank accounts and bookkeeping records; and (5) failure to hold regular shareholder or director meetings. Id. n. 1; see also Jones v. Briley, 593 So.2d 391, 395 (La.App. 1st Cir.1991) (using five-element test); GI’s Club of Slidell, Inc. v. Am. Legion Post # 374, 504 So.2d 967, 968 (La.App. 1st Cir.1987) (same); Harris v. Best of Am. Inc., 466 So.2d 1309, 1315 (La.App. 1st Cir.) (same), writ denied, 470 So.2d 121 (La.1985).
In charging the jury, the district court included the elements above, but added two more: (a) failure to pay dividends; and (b) withdrawal of corporate funds for the personal use of the stockholders. See Record on Appeal, vol. 7, at 147-48. Soli and Brinkley argue that the district court abused its discretion in not strictly adhering to the five elements enumerated in Kingsman. We disagree.
First, Soli and Brinkley have not cited, nor has this Court found, a single Louisiana case suggesting that a court is limited to the five factors in Kingsman. Moreover, the court in Kingsman recognized that the five factors it listed are not exclusive. See Kingsman, 339 So.2d at 1282 n. 1 (“These factors may include but are not limited to — ”).
Second, Louisiana courts have recognized that the additional factors given by the district court are proper criteria for determining shareholder liability under the alter ego theory. See Riggins v. Dixie Shoring Co., Inc., 592 So.2d 1282, 1283 (La.1992) (“Some of the many factors which may properly be considered include: ... nonpayment of dividends, ... [and] siphoning of funds of the corporation____”); Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807, 813 (La.App. 3d Cir.1980) (considering the paying of dividends as a factor in deciding whether to pierce the corporate veil); Dillman v. Nobles, 351 So.2d 210, 214 (La.App. 4th Cir.1977) (considering the withdrawal of corporate funds for personal use as a factor in deciding whether to pierce the corporate veil). Therefore, we find no abuse of discretion in the district court’s formulation of factors to consider under the alter ego theory.
Soil and Brinkley also contend that the district court abused its discretion by failing to explain alter ego liability in its charge to the jury. See Baker v. Raymond Int'l, Inc., 656 F.2d 173, 180 (5th Cir.1981) (holding that it is reversible error for a district court to fail to “present adequately and in context the factors that might warrant the imposition of [alter ego] liability”), cert. denied, 456 U.S. 983, 102 5.Ct. 2256, 72 L.Ed.2d 861 (1982). After reviewing the record, we find that the district court adhered to Baker’s prescriptions.
In Baker, we first noted that a court should explain “at least the rudiments of limited liability.” Baker, 656 F.2d at 180. For example, we stated that a court should instruct a jury that shareholders are “immune from liability for its debts in the absence of ... exceptional circumstances.” Id. The district court fulfilled this requirement by stating that “as a general rule, shareholders are not responsible for debts of the corporation____ However, under certain circumstances ... shareholders become liable individually for corporate debts.” Record on Appeal, vol. 7, at 146.
Second, we stated that a court should describe to the jury the “degree of control that must be found to establish that an ostensibly separate corporation is a mere instrumentality [i.e., alter ego].” Baker, 656 F.2d at 180. For example, in the context of a parent-subsidiary relationship, we noted that a court should instruct the jury that to hold the dominant party liable, “the jury must find that this control ‘amounts to total domination of the subservient corporation, to the extent that the subservient corporation manifests no separate corporate interests of its own.’ ” Id. at 181 (quoting Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483 F.2d 1098, 1106 (5th Cir.1973)). The district court also met this requirement by instructing the jury that to find Soli and Brinkley liable, it had to find them to be “indistinguishable” from the corporation. See Record on Appeal, vol. 7, at 146-47.
Third, we indicated in Baker that a court should instruct the jury to weigh all the factors given, but not consider any one to be dispositive. Baker, 656 F.2d at 181. The district court so advised the jury by stating that “[n]o one factor determines whether the corporate form should be disregarded. I have given you seven of them. No one determines by itself whether you should disregard the corporate form.” Record on Appeal, vol. 7, at 148.
Lastly, we stated that a court should “elaborate[] the significance of [a specific] factor” where warranted by the facts. Baker, 656 F.2d at 181. Soil and Brinkley contend that the district court erred in not elaborating on the element of undercapitalization. Specifically, they argue that the district court should have instructed the jury that continuous corporate operations for a reasonable period of time are per se indicative of adequate capitalization. We disagree.
In Matter of Multiponics, Inc., 622 F.2d 709, 717 (5th Cir.1980), we stated that “the concept of undercapitalization has never been precisely defined.” “[T]his inquiry is highly factual and may vary substantially with the industry, size of the debt, account methods employed, and like factors.” Id. Therefore, the law does not provide that sustained corporate operations preclude a finding of undercapitalization.
Furthermore, “[t]he trial court has no duty to give the jury an exegesis of legal principles that might enable a plaintiff to recover.” Laird v. Shell Oil Co., 770 F.2d 508, 510 (5th Cir.1985); see United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 694 n. 8 (5th Cir.1985) (“We do not require a district court [in instructing a jury on alter ego liability] to list and expressly consider every factor that might be relevant to an ultimate factual issue. This would convert even a simple issue into a lengthy ordeal and would virtually ensure that a district judge would hear only a handful of case in his or her lifetime.”), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986). Because the jury instructions were fundamentally accurate, and gave the jury a basic understanding of the issues, we find no abuse of discretion.
B
Soll and Brinkley next argue that the district court erred by not finding that the government was equitably estopped from pursuing its suit. They specifically contend that it was inequitable for the government, on the one hand, to reject their settlement offer and oppose Clinical's bankruptcy petition, and on the other hand, to initiate suit against them in hopes of finding them personally liable. We strongly disagree.
In support of their novel proposition— that as a prerequisite to any suit piercing the corporate veil, a plaintiff (1) must accept any settlement offer submitted by shareholders, and (2) must not oppose the corporation’s bad faith resort to the bankruptcy laws — Soil and Brinkley cite a single case which is irrelevant to this issue. Rather than applying equitable estoppel to prevent suits against individual shareholders, some courts have used equitable estoppel to allow plaintiffs to pierce the corporate veil. See, e.g., Matter of Kaiser, 791 F.2d 73, 75 (7th Cir.) (“The rules under which the corporate veil may be pierced go-by many names, ... such as alter ego and equitable estoppel." (emphasis added)), cert. denied, 479 U.S. 1011, 107 S.Ct. 655, 93 L.Ed.2d 710 (1986). Therefore, we find no error in the district court’s refusal to apply equitable estoppel.
C
Lastly, Soll and Brinkley claim that they were denied a fair trial. During trial, the district court terminated Soil’s direct examination because of leading questions. During voir dire, the district court warned the jury on several occasions to disregard the fact that Soil and Brinkley operated an abortion clinic. Soil and Brinkley contend that the district court (a) abused its discretion by cutting off Soil’s direct examination, and (b) erred because its warnings “unduly sensitized” the jury to the volatile issue of abortion.
“The conduct of a fair trial is vested in the sound discretion of the trial judge.” Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 391 (5th Cir.), cert. denied, 474 U.S. 850, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). “On review, this conduct will be measured against a standard of fairness and impartiality.” Id. Soil and Brinkley contend that the district court abused its discretion in terminating Soil’s direct testimony “without any explanation.” Brief for Soll at 23. We disagree. When the district court terminated Soil’s direct testimony, the court sustained a specific objection by government’s counsel to leading questions. Therefore, we find that the district court adequately explained its actions.
In addition, the exclusion of Soil’s direct testimony was within the sound discretion granted the district court by Fed.R.Evid. 611. The record indicates that Soil’s counsel attempted to elicit direct testimony from. Soil through leading questions. See Record on Appeal, vol. 6, at 197, 200. A few minutes before terminating direct testimony, the district court specifically warned Soil’s attorney not to lead the witness. See id. at 197. The record further indicates that the district court warned Soli’s attorney about leading questions on at least seven previous occasions. See id. at 16-17, 32, 46, 48, 135, 147, 186. Under these circumstances, we find no abuse of discretion in the district court’s termination of Soil’s direct testimony.
Soll and Brinkley further allege that the district court’s warnings concerning abortion denied them a fair trial. Soil and Brinkley did not object to these comments, and therefore, we review this aspect of the district court's conduct for plain error. See Miles v. Olin Corp., 922 F.2d 1221, 1228 (5th Cir.1991) (“Because [appellant] did not object to the district court’s comments in this case, we review only for plain error.”). “Only an error so fundamental that it generates a miscarriage of justice rises to the level of ‘plain error.’ ” Kuehne & Nagel (AG & CO) v. Geosource, Inc., 874 F.2d 283, 292 (5th Cir.1989).
Soli and Brinkley seem to argue that in warning the jury repeatedly not to consider abortion, the district court somehow “planted” abortion as a prejudicial factor in the minds of the jury. However, the record indicates that Soil’s own attorney repeatedly referred to abortion in addressing the jury during his opening statement. Thus, rather than create prejudice, the district court’s admonitions attempted to rectify the prejudice caused by Soil and Brinkley’s own counsel. Furthermore, it would be nonsensical to find that the district court erred in giving cautionary instructions where Soli and Brinkley themselves requested extensive voir dire on abortion. See Record on Appeal, vol. 4, at 1031, 1033. Thus, we do not find the district court’s cautionary instructions so prejudicial as to constitute error, plain or otherwise.
Ill
For the foregoing reasons, we AFFIRM.
. Clinical operated the Delta Women’s Clinic (the ‘‘Clinic’’) in New Orleans. The U.S. Drug Enforcement Agency (“DEA”) discovered that the Clinic was dispensing controlled substances in violation of the FCSA.
. Brinkley was the President and a director of Clinical, while Soli was the Secretary-Treasurer and a director. Both owned all of Clinical's outstanding stock.
.This theory for piercing the corporate veil is well-established. See First Nat’l City Bank v. Banco Para El Comercio, 462 U.S. 611, 630, 103 S.Ct. 2591, 2601, 77 L.Ed.2d 46 (1983) (“[T]he Court has consistently refused to give effect to the corporate form where it is interposed to defeat legislative policies.”); see also Bangor Punta Operations, Inc. v. Bangor & Aroostook R.R. Co., 417 U.S. 703, 713, 94 S.Ct. 2578, 2584, 41 L.Ed.2d 418 (1974) (“Although a corporation and its shareholders are deemed separate entities for most purposes, the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy.").
. In their reply brief, Soli and Brinkley also challenge the verdict for: (a) insufficient evidence of neglect of corporate formalities; (b) insufficient evidence of undercapitalization; and (c) the unconstitutional application of the "frustration of legislative purpose" theory for corporate disregard. However, we will not consider these arguments on appeal as they were not raised in the initial brief. See Peteet v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir.) ("We may not review arguments raised for the first time in the appellant’s reply brief.’’), cert. denied, 493 U.S. 935, 110 S.Ct. 328, 107 L.Ed.2d 318 (1989).
. Though Clinical was incorporated in Delaware, with Louisiana as its principal place of business, the parties agree, see Brief for Soli at 9-10; Brief for United States at 30, that Louisiana law governs whether Soil and Brinkley should be held personally liable for Clinical’s debts. See Restatement (Second) Conflicts of Law § 306 (1971) ("The obligations owed by a majority shareholder to the corporation ... will be determined by the local law of the state of incorporation, except ... where, with respect to the particular issue, some other state has a more significant relationship____" (emphasis added)).
. Moreover, this instruction complied fully with Soli and Brinkley's Requested Charge No. 5. See Soli’s Record Excerpts at 22; see also Holley v. Palermo, 461 So.2d 539, 542 (La.App. 3d Cir. 1984) (holding that "a creditor may pierce the corporate veil where ... the corporation has ceased to be distinguishable from its shareholders”).
. Concerning this element, the district court stated "[w]hat is adequate capitalization depends upon the nature of the business of the corporation.” Record on Appeal, vol. 7, at 147.
. Soli and Brinkley also contend that the district court erred in submitting the “frustration of legislative purpose” theory to the jury without evidence that the stockholders were personally involved in the FCSA violations. However, we need not reach this issue on appeal. The jury was asked separate interrogatories about the traditional alter ego theory and the frustration of legislative purpose theory, and answered both inquiries against the stockholders. See Record on Appeal, vol. 4, at 990. Because the district court’s instructions on alter ego liability were proper, and Soli and Brinkley have not otherwise disputed their liability under this theory, judgment for the government was justified even without considering the frustration of legislative purpose question.
. As the government proceeded to collect the fine for violating the FCSA, Clinical filed a petition for bankruptcy. The government moved to dismiss the petition, alleging that (1) the petition was filed in bad faith; and (2) Clinical was not a potentially viable business capable of rehabilitation. The bankruptcy court dismissed Clinical’s petition, finding both of these arguments applicable. See Government Exhibit 21, included in Government Record Excerpts.
. We do not know of any good reason why a plaintiff should have to accept a settlement offer by shareholders, particularly where, as in this case, the shareholders had a documented record of: (a) not filing tax returns, see Government Exhibit 5, at 37 (statement of Melvin Soil); (b) filing bankruptcy petitions in bad faith, see Government Exhibit 21; and (c) ignoring DEA warnings. See Record on Appeal, vol. 6, at 178-80.
. See supra note 9.
. Soll and Brinkley cite our decision in Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d 1275 (5th Cir.1988). See Brief for Soll at 20. However, nowhere in this case do we discuss equitable estoppel in the context of preventing a party from piercing the corporate veil.
. Soli’s testimony immediately preceding termination was:
BY MR. KERRIGAN [Soil’s counsel]:
Q. Did you [Soil] also have, as Mr. Brinkley did in his office, a computer terminal at your home?
A. Yes.
Q. Is that where you law office is or was?
A. That’s correct.
Q. So, information that was available from the clinic on the things that the other witnesses have talked about were available to you at your own—
MR. WATSON [government’s counsel]: Objection, Your Honor. He's continuing to lead.
THE COURT: I sustain the objection. We’re going to cut the questions now. You can’t raise them properly. Sorry. Let's go on.
Record on Appeal, vol. 6, at 200.
. Under Fed.R.Evid. 611(a), a district court “shall exercise reasonable control over the mode and order of interrogating witnesses." Furthermore, “[Heading questions should not be used on the direct examination of a witness.” Fed. R.Evid. 611(c).
. See Record on Appeal, vol. 5, at 7, 12, 24, 29.
. See, e.g., Record on Appeal, vol. 5, at 61, 64-65.
. For example, during his opening statement, Kerrigan stated:
[Brinkley] got involved in the pro-choice movement, and he started a company called National Family Planning, and also did business as Controlled Parenthood. That company around this country made information available to ladies in order to get safe pregnancy terminations.
Why was he aware of that? Because one of his friends in college died because of a botched abortion. He formed a business with Mr. Soil, and they felt that this was information and this was service that people were entitled to.
Record on Appeal, vol. 5, at 65.
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_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
Bassam Yacoub SALMAN, Petitioner
v.
UNITED STATES.
No. 15-628.
Supreme Court of the United States
Argued Oct. 5, 2016.
Decided Dec. 6, 2016.
Alexandra A.E. Shapiro, New York, NY, for petitioner.
Michael R. Dreeben, Washington, DC, for the respondent.
Alexandra A.E. Shapiro, Daniel J. O'Neill, Shapiro Arato LLP, New York, NY, John D. Cline, Law Office of John D. Cline, San Francisco, CA, for petitioner.
Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Ross C. Goldman, Attorney, Department of Justice, Washington, DC, for the United States in Opposition.
Anne K. Small, General Counsel, Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, Jacob H. Stillman, Senior Advisor to the Solicitor, David D. Lisitza, Senior Litigation Counsel, Securities and Exchange Commission, Washington, DC, Ian Heath Gershengorn, Acting Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Elaine J. Goldenberg, Assistant to the Solicitor General, Ross B. Goldman, Attorney, Department of Justice, Washington, DC, for the Respondent.
Justice ALITO delivered the opinion of the Court.
Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission's Rule 10b-5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage. 48 Stat. 891, as amended, 15 U.S.C. § 78j(b) (prohibiting the use, "in connection with the purchase or sale of any security," of "any manipulative or deceptive device or contrivance in contravention of such rules as the [Securities and Exchange Commission] may prescribe"); 17 C.F.R. § 240.10b-5 (2016) (forbidding the use, "in connection with the sale or purchase of any security," of "any device, scheme or artifice to defraud," or any "act, practice, or course of business which operates ... as a fraud or deceit"); see United States v. O'Hagan, 521 U.S. 642, 650-652, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997). Individuals under this duty may face criminal and civil liability for trading on inside information (unless they make appropriate disclosures ahead of time).
These persons also may not tip inside information to others for trading. The tippee acquires the tipper's duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper's duty, and the tippee may commit securities fraud by trading in disregard of that knowledge. In Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), this Court explained that a tippee's liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit. And, we went on to say, a jury can infer a personal benefit-and thus a breach of the tipper's duty-where the tipper receives something of value in exchange for the tip or "makes a gift of confidential information to a trading relative or friend." Id., at 664, 103 S.Ct. 3255.
Petitioner Bassam Salman challenges his convictions for conspiracy and insider trading. Salman received lucrative trading tips from an extended family member, who had received the information from Salman's brother-in-law. Salman then traded on the information. He argues that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them. The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a " 'gift of confidential information to a trading relative.' " 792 F.3d 1087, 1092 (C.A.9 2015) (quoting Dirks, supra, at 664, 103 S.Ct. 3255 ). Because the Court of Appeals properly applied Dirks, we affirm the judgment below.
I
Maher Kara was an investment banker in Citigroup's healthcare investment banking group. He dealt with highly confidential information about mergers and acquisitions involving Citigroup's clients. Maher enjoyed a close relationship with his older brother, Mounir Kara (known as Michael). After Maher started at Citigroup, he began discussing aspects of his job with Michael. At first he relied on Michael's chemistry background to help him grasp scientific concepts relevant to his new job. Then, while their father was battling cancer, the brothers discussed companies that dealt with innovative cancer treatment and pain management techniques. Michael began to trade on the information Maher shared with him. At first, Maher was unaware of his brother's trading activity, but eventually he began to suspect that it was taking place.
Ultimately, Maher began to assist Michael's trading by sharing inside information with his brother about pending mergers and acquisitions. Maher sometimes used code words to communicate corporate information to his brother. Other times, he shared inside information about deals he was not working on in order to avoid detection. See, e.g., App. 118, 124-125. Without his younger brother's knowledge, Michael fed the information to others-including Salman, Michael's friend and Maher's brother-in-law. By the time the authorities caught on, Salman had made over $1.5 million in profits that he split with another relative who executed trades via a brokerage account on Salman's behalf.
Salman was indicted on one count of conspiracy to commit securities fraud, see 18 U.S.C. § 371, and four counts of securities fraud, see 15 U.S.C. §§ 78j(b), 78ff ; 18 U.S.C. § 2 ; 17 C.F.R. § 240.10b-5. Facing charges of their own, both Maher and Michael pleaded guilty and testified at Salman's trial.
The evidence at trial established that Maher and Michael enjoyed a "very close relationship." App. 215. Maher "love[d] [his] brother very much," Michael was like "a second father to Maher," and Michael was the best man at Maher's wedding to Salman's sister. Id ., at 158, 195, 104-107. Maher testified that he shared inside information with his brother to benefit him and with the expectation that his brother would trade on it. While Maher explained that he disclosed the information in large part to appease Michael (who pestered him incessantly for it), he also testified that he tipped his brother to "help him" and to "fulfil[l] whatever needs he had." Id ., at 118, 82. For instance, Michael once called Maher and told him that "he needed a favor." Id., at 124. Maher offered his brother money but Michael asked for information instead. Maher then disclosed an upcoming acquisition. Ibid. Although he instantly regretted the tip and called his brother back to implore him not to trade, Maher expected his brother to do so anyway. Id., at 125.
For his part, Michael told the jury that his brother's tips gave him "timely information that the average person does not have access to" and "access to stocks, options, and what have you, that I can capitalize on, that the average person would never have or dream of." Id., at 251. Michael testified that he became friends with Salman when Maher was courting Salman's sister and later began sharing Maher's tips with Salman. As he explained at trial, "any time a major deal came in, [Salman] was the first on my phone list." Id ., at 258. Michael also testified that he told Salman that the information was coming from Maher. See, e.g., id ., at 286 (" 'Maher is the source of all this information' ").
After a jury trial in the Northern District of California, Salman was convicted on all counts. He was sentenced to 36 months of imprisonment, three years of supervised release, and over $730,000 in restitution. After his motion for a new trial was denied, Salman appealed to the Ninth Circuit. While his appeal was pending, the Second Circuit issued its opinion in United States v. Newman, 773 F.3d 438 (2014), cert. denied, 577 U.S. ----, 136 S.Ct. 242, 193 L.Ed.2d 133 (2015). There, the Second Circuit reversed the convictions of two portfolio managers who traded on inside information. The Newman defendants were "several steps removed from the corporate insiders" and the court found that "there was no evidence that either was aware of the source of the inside information." 773 F.3d, at 443. The court acknowledged that Dirks and Second Circuit case law allow a factfinder to infer a personal benefit to the tipper from a gift of confidential information to a trading relative or friend. 773 F.3d, at 452. But the court concluded that, "[t]o the extent" Dirks permits "such an inference," the inference "is impermissible in the absence of proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature." 773 F.3d, at 452.
Pointing to Newman, Salman argued that his conviction should be reversed. While the evidence established that Maher made a gift of trading information to Michael and that Salman knew it, there was no evidence that Maher received anything of "a pecuniary or similarly valuable nature" in exchange-or that Salman knew of any such benefit. The Ninth Circuit disagreed and affirmed Salman's conviction. 792 F.3d 1087. The court reasoned that the case was governed by Dirks 's holding that a tipper benefits personally by making a gift of confidential information to a trading relative or friend. Indeed, Maher's disclosures to Michael were "precisely the gift of confidential information to a trading relative that Dirks envisioned." 792 F.3d, at 1092 (internal quotation marks omitted). To the extent Newman went further and required additional gain to the tipper in cases involving gifts of confidential information to family and friends, the Ninth Circuit "decline [d] to follow it." 792 F.3d, at 1093.
We granted certiorari to resolve the tension between the Second Circuit's Newman decision and the Ninth Circuit's decision in this case. 577 U.S. ----, 136 S.Ct. 899, 193 L.Ed.2d 788 (2016).
II
A
In this case, Salman contends that an insider's "gift of confidential information to a trading relative or friend," Dirks, 463 U.S., at 664, 103 S.Ct. 3255 is not enough to establish securities fraud. Instead, Salman argues, a tipper does not personally benefit unless the tipper's goal in disclosing inside information is to obtain money, property, or something of tangible value. He claims that our insider-trading precedents, and the cases those precedents cite, involve situations in which the insider exploited confidential information for the insider's own "tangible monetary profit." Brief for Petitioner 31. He suggests that his position is reinforced by our criminal-fraud precedents outside of the insider-trading context, because those cases confirm that a fraudster must personally obtain money or property. Id ., at 33-34. More broadly, Salman urges that defining a gift as a personal benefit renders the insider-trading offense indeterminate and overbroad: indeterminate, because liability may turn on facts such as the closeness of the relationship between tipper and tippee and the tipper's purpose for disclosure; and overbroad, because the Government may avoid having to prove a concrete personal benefit by simply arguing that the tipper meant to give a gift to the tippee. He also argues that we should interpret Dirks 's standard narrowly so as to avoid constitutional concerns. Brief for Petitioner 36-37. Finally, Salman contends that gift situations create especially troubling problems for remote tippees-that is, tippees who receive inside information from another tippee, rather than the tipper-who may have no knowledge of the relationship between the original tipper and tippee and thus may not know why the tipper made the disclosure. Id ., at 43, 48, 50.
The Government disagrees and argues that a gift of confidential information to anyone, not just a "trading relative or friend," is enough to prove securities fraud. See Brief for United States 27 ("Dirks 's personal-benefit test encompasses a gift to any person with the expectation that the information will be used for trading, not just to 'a trading relative or friend' " (quoting 463 U.S., at 664, 103 S.Ct. 3255 ; emphasis in original)). Under the Government's view, a tipper personally benefits whenever the tipper discloses confidential trading information for a noncorporate purpose. Accordingly, a gift to a friend, a family member, or anyone else would support the inference that the tipper exploited the trading value of inside information for personal purposes and thus personally benefited from the disclosure. The Government claims to find support for this reading in Dirks and the precedents on which Dirks relied. See, e.g., id., at 654, 103 S.Ct. 3255 ("fraud" in an insider-trading case "derives 'from the inherent unfairness involved where one takes advantage' of 'information intended to be available only for a corporate purpose and not for the personal benefit of anyone' " (quoting In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E.C. 933, 936 (1968) )).
The Government also argues that Salman's concerns about unlimited and indeterminate liability for remote tippees are significantly alleviated by other statutory elements that prosecutors must satisfy to convict a tippee for insider trading. The Government observes that, in order to establish a defendant's criminal liability as a tippee, it must prove beyond a reasonable doubt that the tipper expected that the information being disclosed would be used in securities trading. Brief for United States 23-24; Tr. of Oral Arg. 38. The Government also notes that, to establish a defendant's criminal liability as a tippee, it must prove that the tippee knew that the tipper breached a duty-in other words, that the tippee knew that the tipper disclosed the information for a personal benefit and that the tipper expected trading to ensue. Brief for United States 43; Tr. of Oral Arg. 36-37, 39.
B
We adhere to Dirks, which easily resolves the narrow issue presented here.
In Dirks, we explained that a tippee is exposed to liability for trading on inside information only if the tippee participates in a breach of the tipper's fiduciary duty. Whether the tipper breached that duty depends "in large part on the purpose of the disclosure" to the tippee. 463 U.S., at 662, 103 S.Ct. 3255. "[T]he test," we explained, "is whether the insider personally will benefit, directly or indirectly, from his disclosure." Ibid. Thus, the disclosure of confidential information without personal benefit is not enough. In determining whether a tipper derived a personal benefit, we instructed courts to "focus on objective criteria, i.e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings." Id., at 663, 103 S.Ct. 3255. This personal benefit can "often" be inferred "from objective facts and circumstances," we explained, such as "a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient." Id., at 664, 103 S.Ct. 3255. In particular, we held that "[t]he elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend ." Ibid. (emphasis added). In such cases, "[t]he tip and trade resemble trading by the insider followed by a gift of the profits to the recipient." Ibid. We then applied this gift-giving principle to resolve Dirks itself, finding it dispositive that the tippers "received no monetary or personal benefit" from their tips to Dirks, "nor was their purpose to make a gift of valuable information to Dirks ." Id., at 667, 103 S.Ct. 3255 (emphasis added).
Our discussion of gift giving resolves this case. Maher, the tipper, provided inside information to a close relative, his brother Michael. Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to "a trading relative," and that rule is sufficient to resolve the case at hand. As Salman's counsel acknowledged at oral argument, Maher would have breached his duty had he personally traded on the information here himself then given the proceeds as a gift to his brother. Tr. of Oral Arg. 3-4. It is obvious that Maher would personally benefit in that situation. But Maher effectively achieved the same result by disclosing the information to Michael, and allowing him to trade on it. Dirks appropriately prohibits that approach, as well. Cf. 463 U.S., at 659, 103 S.Ct. 3255 (holding that "insiders [are] forbidden" both "from personally using undisclosed corporate information to their advantage" and from "giv[ing] such information to an outsider for the same improper purpose of exploiting the information for their personal gain"). Dirks specifies that when a tipper gives inside information to "a trading relative or friend," the jury can infer that the tipper meant to provide the equivalent of a cash gift. In such situations, the tipper benefits personally because giving a gift of trading information is the same thing as trading by the tipper followed by a gift of the proceeds. Here, by disclosing confidential information as a gift to his brother with the expectation that he would trade on it, Maher breached his duty of trust and confidence to Citigroup and its clients-a duty Salman acquired, and breached himself, by trading on the information with full knowledge that it had been improperly disclosed.
To the extent the Second Circuit held that the tipper must also receive something of a "pecuniary or similarly valuable nature" in exchange for a gift to family or friends, Newman, 773 F.3d, at 452, we agree with the Ninth Circuit that this requirement is inconsistent with Dirks .
C
Salman points out that many insider-trading cases-including several that Dirks cited-involved insiders who personally profited through the misuse of trading information. But this observation does not undermine the test Dirks articulated and applied. Salman also cites a sampling of our criminal-fraud decisions construing other federal fraud statutes, suggesting that they stand for the proposition that fraud is not consummated unless the defendant obtains money or property. Sekhar v. United States, 570 U.S. ----, 133 S.Ct. 2720, 186 L.Ed.2d 794 (2013) (Hobbs Act); Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (honest-services mail and wire fraud); Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (wire fraud); McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (mail fraud). Assuming that these cases are relevant to our construction of § 10(b) (a proposition the Government forcefully disputes), nothing in them undermines the commonsense point we made in Dirks. Making a gift of inside information to a relative like Michael is little different from trading on the information, obtaining the profits, and doling them out to the trading relative. The tipper benefits either way. The facts of this case illustrate the point: In one of their tipper-tippee interactions, Michael asked Maher for a favor, declined Maher's offer of money, and instead requested and received lucrative trading information.
We reject Salman's argument that Dirks 's gift-giving standard is unconstitutionally vague as applied to this case. Dirks created a simple and clear "guiding principle" for determining tippee liability, 463 U.S., at 664, 103 S.Ct. 3255 and Salman has not demonstrated that either § 10(b) itself or the Dirks gift-giving standard "leav[e] grave uncertainty about how to estimate the risk posed by a crime" or are plagued by "hopeless indeterminacy," Johnson v. United States, 576 U.S. ----, ----, ----, 135 S.Ct. 2551, 2557, 2558, 192 L.Ed.2d 569 (2015). At most, Salman shows that in some factual circumstances assessing liability for gift-giving will be difficult. That alone cannot render "shapeless" a federal criminal prohibition, for even clear rules "produce close cases." Id., at ----, ----, 135 S.Ct., at 2560. We also reject Salman's appeal to the rule of lenity, as he has shown "no grievous ambiguity or uncertainty that would trigger the rule's application." Barber v. Thomas, 560 U.S. 474, 492, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (internal quotation marks omitted). To the contrary, Salman's conduct is in the heartland of Dirks 's rule concerning gifts. It remains the case that "[d]etermining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts." 463 U.S., at 664, 103 S.Ct. 3255. But there is no need for us to address those difficult cases today, because this case involves "precisely the 'gift of confidential information to a trading relative' that Dirks envisioned." 792 F.3d, at 1092 (quoting 463 U.S., at 664, 103 S.Ct. 3255 ).
III
Salman's jury was properly instructed that a personal benefit includes "the benefit one would obtain from simply making a gift of confidential information to a trading relative." App. 398-399. As the Court of Appeals noted, "the Government presented direct evidence that the disclosure was intended as a gift of market-sensitive information." 792 F.3d, at 1094. And, as Salman conceded below, this evidence is sufficient to sustain his conviction under our reading of Dirks . Appellant's Supplemental Brief in No. 14-10204(CA9), p. 6 ("Maher made a gift of confidential information to a trading relative [Michael] ... and, if [Michael's] testimony is accepted as true (as it must be for purposes of sufficiency review), Salman knew that Maher had made such a gift" (internal quotation marks, brackets, and citation omitted)). Accordingly, the Ninth Circuit's judgment is affirmed.
It is so ordered.
The Second Circuit also reversed the Newman defendants' convictions because the Government introduced no evidence that the defendants knew the information they traded on came from insiders or that the insiders received a personal benefit in exchange for the tips. 773 F.3d, at 453-454. This case does not implicate those issues.
Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), established the personal-benefit framework in a case brought under the classical theory of insider-trading liability, which applies "when a corporate insider" or his tippee "trades in the securities of [the tipper's] corporation on the basis of material, nonpublic information." United States v. O'Hagan, 521 U.S. 642, 651-652, 117 S.Ct. 2199, 138 L.Ed.2d 724 (1997). In such a case, the defendant breaches a duty to, and takes advantage of, the shareholders of his corporation. By contrast, the misappropriation theory holds that a person commits securities fraud "when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information" such as an employer or client. Id., at 652, 117 S.Ct. 2199. In such a case, the defendant breaches a duty to, and defrauds, the source of the information, as opposed to the shareholders of his corporation. The Court of Appeals observed that this is a misappropriation case, 792 F.3d, 1087, 1092, n. 4 (C.A.9 2015), while the Government represents that both theories apply on the facts of this case, Brief for United States 15, n. 1. We need not resolve the question. The parties do not dispute that Dirks 's personal-benefit analysis applies in both classical and misappropriation cases, so we will proceed on the assumption that it does.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_threejudgefdc
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the 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.
FEDERAL HOUSING ADMINISTRATION v. THE DARLINGTON, INC.
No. 13.
Argued October 13, 1958.
Decided November 24, 1958.
Alan S. Rosenthal argued the cause for appellant. With him on the brief were Solicitor General Rankin and Assistant Attorney General Doub.
J. C. Long argued the cause for appellee. With him on the brief were W. Turner Logan and Hernán H. Higgins, Jr.
Me. Justice Douglas
delivered the opinion of the Court.
This case involves a construction of § 608 of the National Housing Act, 56 Stat. 303, 12 U. S. C. § 1743, as amended by § 10 of the Veterans’ Emergency Housing Act of 1946, 60 Stat. 207, 214, and the Regulations issued thereunder. The aim of the Act as stated in § 608 (b) (2) is to provide housing for veterans of World War II and their immediate families. That end is to be achieved by authorizing the Federal Housing Administration to insure mortgages covering those projects. § 608 (a). Mortgagors, eligible for insurance, are to be approved by the agency, which is empowered to require them “to be regulated or restricted as to rents or sales, charges, capital structure, rate of return, and methods of operation.” § 608 (b)(1).
Appellee is a South Carolina corporation formed in 1949 to obtain FHA mortgage insurance for an apartment house to be constructed in Charleston. The insurance issued and the apartment was completed. The Regulations, promulgated under the Act (24 CFR § 280 et seq.), provide that the mortgaged property shall be “designed principally for residential use, conforming to standards satisfactory to the Commissioner, and consisting of not less than eight (8) rentable dwelling units on one site . . . .” § 280.34. The Regulations further provide:
“No charge shall be made by the mortgagor for the accommodations offered by the project in excess of a rental schedule to be filed with the Commissioner and approved by him or his duly constituted representative prior to the opening of the project for rental, which schedule shall be based upon a maximum average rental fixed prior to the insurance of the mortgage, and shall not thereafter be changed except upon application of the mortgagor to, and the written approval of the change by, the Commissioner.” § 280.30 (a).
Veterans and their families are given preference in the rentals; and discrimination against families with children is prohibited. § 280.24.
Appellee submitted to FHA its schedule of monthly rates for its different types of apartments. No schedule of rates for transients was supplied. Indeed there was no representation to FHA that any of the apartménts would be furnished. But an affiliate of appellee without FHA knowledge furnished a number of apartments; and some were leased to transients on a daily basis at rentals never submitted to nor approved by FHA, part of the rental going to the affiliate as “furniture rental.” Though appellee, as required by the Regulations (§ 280.30 (f)), made reports to FHA, it made no disclosure to the agency that it had either furnished some apartments or rented them to transients. But it continued to rent furnished apartments to transients both before and after 1954 when § 513 was added to the Act. 68 Stat. 610, 12 U. S. C. (Supp. V) § 1731b. The new section contained in subsection (a) the following declaration of congressional purpose:
“The Congress hereby declares that it has been its intent since the enactment of the National Housing Act that housing built with the aid of mortgages insured under that Act is to be used principally for residential use; and that this intent excludes the use of such housing for transient or hotel purposes while such insurance on the mortgage remains outstanding.” And see H. R. Rep. No. 1429, 83d Cong., 2d Sess., p. 17; S. Rep. No. 1472, 83d Cong., 2d Sess., p. 31.
Appellee persisted in its rental of space to transients. Appellant FHA persisted in maintaining that the practice was not authorized. In 1955 appellee brought this suit for a declaratory judgment that so long as it operates its property "principally” for residential use, keeps apartments available for extended tenancies, and complies with the terms of the Act in existence at the túne it obtained the insurance, it is entitled to rent to transients. The District Court gave appellee substantially the relief which it demanded. 142 F. Supp. 341. On appeal, we remanded the cause for consideration by a three-judge court pursuant to 28 U. S. C. § 2282. 352 U. S. 977. On the remand a three-judge court adopted the earlier findings and conclusions of the single judge, 154 F. Supp. 411, attaching however certain conditions to the decree unnecessary to discuss here. It held that rental to transients was not barred by § 608 and that § 513 (a) as applied to respondent was unconstitutional. The case is here on direct appeal. 28 U. S. C. § 1253.
We take a different view. We do not think the Act gave mortgagors the right to rent to transients. There is no express provision one way or the other; but the limitation seems fairly implied. We deal with legislation passed to aid veterans and their families, not with a law to promote the hotel or motel business. To be sure, the Regulations speak of property “designed principally for residential use” (§ 280.34) — words that by themselves would not preclude transient rentals. But those words, as the Senate Report on the 1954 Amendment indicates, were evidently used so as not to preclude some commercial rentals. Moreover, the Regulation goes on to describe the property that is insured as “dwelling units.” Id. The word “dwelling” in common parlance means a permanent residence. A person can of course take up permanent residence even in a motel or hotel. But those who come for a night or so have not chosen it as a settled abode. Yet the idea of permanency pervades the concept of “dwelling.” That was the construction given to § 608 by FHA in 1947 when it issued its book Planning Rental Housing Projects. “Housing” was there interpreted to mean “dwelling quarters for families — quarters which offer complete facilities for family life.” There again the quality of permanency is implicit. And if the provisions of appellee’s charter are deemed relevant, it is not without interest to note the requirement that “Dwelling accommodations of the corporation shall be rented at a maximum average rental per room per month. . . .” Again the focus is on permanency.
In 1946 FHA made provisions in its application forms for estimates of annual operating expenses of the project. None of the expenses incident to transient accommodations — such as linen supply and cleaning expenses — were listed. Once more we may infer that the insurance program was not designed in aid of transients.
In a letter to field offices in 1951 explaining the criteria to be considered in passing on rent schedules and methods of operation, the FHA instructed them to: “. . . bear in mind that the objective of this Administration is the production of housing designed for occupancy of a relatively permanent nature and that transient occupancy is contrary to policy. No approval will be granted with respect to a proposal anticipating transient occupancy.” That interpretation of the Act is clear and unambiguous, and, taken with the Regulations, indicates that the authority charged with administration of the statute construed it to bar rental to transients.
Moreover, as already mentioned, prior approval by FHA of all rental schedules was always required by § 280.30 of the Regulations and appellee never obtained nor sought approval of a schedule of rents for transients.
It is true that FHA felt it had the authority to approve rental schedules for transients. It gave such approval in a dozen or more instances where it felt the public interest required it. We need not stop to inquire whether FHA had that authority. We have said enough to indicate that no right or privilege to rent to transients is expressly included in the Act nor fairly implied. The contemporaneous construction of the Act by the agency entrusted with its administration is squarely to the contrary. In circumstances no more ambiguous than the present we have allowed contemporaneous administrative construction to carry the day against doubts that might exist from a reading of the bare words of a statute. See United States v. American Trucking Assns., 310 U. S. 534, 549; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315. When Congress passed the 1954 Amendment, it accepted the construction of the prior Act which bars rentals to transients. Subsequent legislation which declares the intent of an earlier law is not, of course, conclusive in determining what the previous Congress meant. But the later law is entitled to weight when it comes to the problem of construction. See United States v. Stafoff, 260 U. S. 477, 480; Sioux Tribe v. United States, 316 U. S. 317, 329-330. The purpose of the Act, its administrative construction, and the meaning which a later Congress ascribed to it all point to the conclusion that the housing business to be benefited by FHA insurance did not include rental to transients.
If the question be less clear and free from doubt than we think, it is still one that lies in the periphery where vested rights do not attach. If we take as our starting point what the Court said in the Sinking-Fund Cases, 99 U. S. 700, 718— “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt” — we do not see how it can be said that the 1954 Act is unconstitutional as applied. Appellee is not penalized for anything it did in the past. The new Act applies prospectively only. So there is no possible due process issue on that score. As stated in Fleming v. Rhodes, 331 U. S. 100, 107, “Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Cpnstitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts.”
Moreover, one has to look long and hard to find even a semblance of a contractual right rising to the dignity of the one involved in Lynch v. United States, 292 U. S. 571. The Constitution is concerned with practical, substantial rights, not with those that are unclear and gain hold by subtle and involved reasoning. Congress by the 1954 Act was doing no more than protecting the regulatory system which it had designed. Those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end. Cf. Veix v. Sixth Ward Assn., 310 U. S. 32; Keefe v. Clark, 322 U. S. 393. Invocation of the Due Process Clause to protect the rights asserted here would make the ghost of Lochner v. New York, 198 U. S. 45, walk again.
Reversed.
Mr. Justice Stewart took no part in the consideration or decision of this case.
The Act provides that, except for certain exceptions not relevant here, no new or existing multifamily housing with respect to which a mortgage is insured by the FHA shall be operated for transient purposes. § 513 (b). The Commissioner is authorized to define “rental for transient or hotel purposes” but in any event rental for any period less than 30 days constitutes rental for such purposes. §513 (e).
S. Rep. No. 1130, 79th Cong., 2d Sess.; H. R. Rep. No. 1580, 79th Cong., 2d Sess.
S. Rep. No. 1472, 83d Cong., 2d Sess., p. 31, states:
“Your committee does not believe the spirit of this intent is violated by the operation of a commercial establishment included to serve the needs of families residing in rental projects operated as permanent residential housing projects (as distinguished from those operated to provide transient accommodations) but it firmly- believes that the operation of such establishments should not be conducted in such a manner as to convert the use of all or any portion of the housing units in the project from permanent, residential use to a project furnishing transient accommodations. . . .”
The same tone is exhibited in the Committee Reports on the various amendments to § 608. For instance, in reporting the Veterans’ Emergency Housing Act of 1946 the Senate Committee on Banking and Currency stated:
“Since a main purpose of these provisions [authorizations of additional insurance] is to reduce the risks assumed by builders in order to encourage a large volume of housing, the committee calls special attention to the fact that this portion of the bill places' emphasis upon rental housing. It is the specific intent of the committee that those in charge of the program shall make every reasonable effort to obtain a substantial volume of rental housing — or in any event housing held for rental during the emergency — through the operation of title VI, both with respect to multifamily units and individual units. While home ownership is to be encouraged, a large percentage of veterans do not yet possess the certainty of income or of location, or the financial means, to purchase homes at this time. The bill as approved by the House of Representatives included this attention to rental housing.” S. Rep. No. 1130, 79th Cong., 2d Sess., p. 8. (Italics added.)
The 1954 Amendment expressly gave FHA that power in certain limited situations. See § 513 (b).
In Fleming a landlord had obtained a judgment of eviction in a state court prior to the enactment of the Price Control Extension Act, under which the Administrator had promulgated rules prohibiting removal of the tenants from the leased premises on the grounds asserted by the landlord. It was held that the landlord could be enjoined from evicting the tenants under the state judgment, as any “vested” rights by reason of the state judgment were acquired subject to the possibility of their dilution through Congress’ exercise of its paramount regulatory power.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer:
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songer_casetyp1_1-3-1
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J
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Robert OWENS, Eugene Howell, Joseph Lyle and Zenobia Owens, a/k/a Zenobia McKinley, Defendants-Appellants.
No. 14681.
United States Court of Appeals Seventh Circuit.
June 2, 1965.
Rehearing Denied June 29, 1965.
Stephen Love, Ellis E. Reid, George N. Leighton, Chicago, 111., for appellant.
Edward V. Hanrahan, U. S. Atty., Gerald M. Werksman, Asst. U. S. Atty., Chicago, 111., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.
Before ENOCH, CASTLE and KILEY, Circuit Judges.
KILEY, Circuit Judge.
Defendants appeal from their convictions, by a jury, of narcotics laws violations : Lyle under two substantive counts, and all under a conspiracy count. We affirm.
Defendants contend that the evidence was not sufficient to sustain the verdicts finding them members in, and guilty of, the general conspiracy charged in the indictment. On this contention we must view the evidence and draw the inferences therefrom in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), cert. denied 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956).
There is ample evidence from which the jury could infer that Eugene Howell and Robert Owens were at the top of a heroin hierarchy and that the narcotics passed from them down through “Red” Thomas and Joseph Lyle — all aided by Zenobia Owens — to the addicts at the base, and that they all knowingly joined in the unlawful conspiracy charged in the indictment. That the members had varied duties does not change the fact that they all acted in furtherance of the same conspiracy. United States v. Micele, 327 F.2d 222, 225 (7th Cir. 1964); United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).
There is evidence that Marvin Moses in looking for a source of narcotics was introduced by Owens to “Red” Thomas; that when Moses called the number given him by Thomas, Zenobia Owens would take the messages for Thomas; that Thomas sold narcotics to Moses; that Zenobia Owens, at least once, picked up money for Thomas at the place where the money and narcotics were customarily exchanged; that Moses later became an informer and introduced Agent Gibson to Thomas, who sold Gibson heroin; that Howell and Owens were arrested together on the Pennsylvania Turnpike and Howell was found in possession of narcotics ; that Howell admitted to the Pennsylvania police that he was returning from a trip to New York to obtain narcotics; that following the arrests Thomas told Moses he could not do anything for him then because “his men” had been arrested in Pennsylvania; and that Thomas later told Gibson that “his people * * * had gotten popped” on the Turnpike but that the stuff that was found did not belong to “his man, Robert.”
There is evidence also that Lyle sold a small sample of heroin to Agent Dayle and told him there would be a delay in supplying larger quantities because “my people” were arrested on the Pennsylvania Turnpike, but that he would have heroin in quantity for Dayle “as soon as they get back from Pennsylvania”; and that Lyle also said “they found the stuff on Gene.”
The evidence is further that Moses brought together Dayle and Owens, who said his “partner” and he “got busted along the turnpike”; that Owens gave Dayle the same telephone number given to Gibson by Thomas; that Owens and Thomas were seen together in a night club and that Thomas, after making sales of narcotics, went to a house where he was let in by Owens; that Owens drove Lyle’s car on several occasions; that Thomas gave Gibson a second telephone number to use; and that Owens was the owner of the building in which were located the two telephones involved in the transactions, one registered to Zenobia Owens and the other to Lily Starkey, who owned the car in which Owens and Howell were arrested.
We think this evidence was clearly sufficient to support the jury’s verdict.
Defendants challenge the rulings of the district court in denying motions to suppress heroin seized from Howell by the Pennsylvania State Police following his arrest there and in refusing to suppress evidence seized from the residences of Howell and Zenobia Owens at the time of their arrests.
Howell was driving with Owens and one Hightower in a new Cadillac convertible on the Pennsylvania Turnpike when he was arrested for speeding. An on-the-spot interrogation disclosed the suspicious circumstance that the car was registered in the name of Lily Starkey, whom Howell said he did not know and from whom neither Owens nor Howell could show permission to drive the car. The Pennsylvania officer, suspecting that the car was stolen, questioned Owens about the contents of the trunk, which Owens opened, revealing three suitcases. Owens disclaimed ownership of one of the suitcases, which was unlocked, and when opened by the officer contained, in open view, a crude hypodermic needle of a type used by addicts. Searching further in the suitcase the officer found a burnt spoon with a bent handle, also an addict’s tool, and a loaded revolver. A search of Howell at the police station disclosed in his shoe a package of nearly pure heroin.
It is clear from the facts in the record that the arrest for speeding was not “a mere excuse to search” for narcotics as in Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961), and that the arrest was valid under Pennsylvania law, which controls that question. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Viale, 312 F.2d 595, 599 (2d Cir.) cert. denied 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963). The surrounding circumstances justified the arresting officer in suspecting that he was dealing with a situation more serious than routine speeding and he had reasonable grounds for believing that the car might be stolen. There is nothing to indicate that the officer suspected the presence of any narcotics or other violation until the suitcase was opened, disclosing the needle. Considering the situation which faced the officer, his attempts to determine whether the car was stolen were not unreasonable or violative of the Fourth Amendment, and the evidence which was turned up was not the fruit of any “poisonous tree.”
The arrests of Howell and Zenobia Owens in Chicago were concededly valid. The question is whether the district court erroneously ruled that the attendant searches were not unreasonable under the Fourth Amendment. Both Howell and Zenobia Owens were arrested on May 6, 1963. At Howell’s home two books lying in open view were seized, each containing the second telephone number given to Gibson by “Red” Thomas, and the notation “Red.” In the residence of Zenobia Owens a slip of paper bearing the same number and notation “Red” was found in her purse in the bedroom.
Defendants argue that the books and slip of paper were seized unlawfully in a general search “solely for evidence.” There is no merit in the argument. The items were seized pursuant to a lawful arrest where the officers were looking for “Contraband, fruits of the crime,” as the arresting officer testified. The items seized were closely related to the means of communication by telephone essential to the successful conduct of the conspiracy and fall within the class of instrumentalities of crime properly subject to seizure incident to arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed.2d 1399 (1947); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Boyette, 299 F.2d 92 (4th Cir.), cert. denied sub nom. Mooring v. United States, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed. 2d 848 (1962).
Lyle was charged with selling heroin on February 15, 1963 to Agent Dennis Dayle, and with fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment of unlawfully imported heroin on the same day. The evidence taken most favorably for the Government, United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), substantially proves the offenses charged.
Lyle testified in support of his defense of entrapment that his friend and former attorney, who had become a Government informer, by persistent importuning arranged the meeting with Dayle. Dayle’s testimony shows that Lyle readily agreed to the transaction and that he tried to impress Dayle with his connection with Owens and Howell, and spoke of doing business “in a million dollar way.” In this testimony and that of Agent Cook, in rebuttal, of sales of narcotics by Lyle to him in April 1962, the jury had sufficient basis to find that Lyle was predisposed to the transaction and was not entrapped.
Defendants contend that Cook’s testimony was improper and prejudicial to them since the testimony was of transactions unconnected with the charges in the indictment. The testimony was proper as an inquiry into Lyle’s predisposition to commit the crime, Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and the court’s instructions to the jury properly limited the rebuttal testimony to Lyle’s defense of entrapment. The other defendants, therefore, were not prejudiced.
The judgments are affirmed.
. Charging a sale of heroin to a federal narcotics agent in violation of 26 U.S.C. § 4705(a) and fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment, after unlawful importation, of a quantity of heroin, knowing it to have been unlawfully imported into the United States, in violation of 21 U.S.C. § 174.
. Charging conspiracy to violate 21 U.S.C. § 174.
. The Pennsylvania state policeman clocked the speed of the car as being in excess of the 70 m. p. h speed limit of Title 75 Pennsylvania Statutes, Section 1002, and he made the arrest for speeding pursuant to his authority under Title 71 Pennsylvania Statutes, Section 252.
. “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize tilings connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.” Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 1101 (1947), quoting Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925).
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_counsel1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael RIVAS, Defendant-Appellant.
No. 72-3222
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 11, 1973.
G. Paul Shoop, Dallas, Tex. (Court Appointed), for defendant-appellant.
William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
The defendant, Charles Michael Rivas, was charged on May 18, 1972, in a two count indictment as follows:
Count I
Knowingly and intentionally possessing with intent to distribute for remuneration approximately two pounds and five ounces of marijuana in violation of 21 U.S.C., § 841(a)(1).
Count II
Knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C., § 844(a).
On June 2, 1972, Rivas was arraigned on the first count, it being specifically stated in open court that the second count was to be dismissed. The defendant, represented by counsel, was thoroughly interrogated not only by the United States Attorney but, ultimately, by the Court. In addition, the defendant stated that his counsel had gone over his rights with him “in detail”.
On September 29, almost four months after the arraignment, and a week before he was sentenced, represented by a different attorney, Rivas filed a motion to be allowed to withdraw his plea of guilty.
After a hearing on October 2, 1972, this motion was denied. Sentence was imposed October 5. Rivas now appeals from the denial of his motion to withdraw the guilty plea.
We affirm the action of the District Court because our perusal of the record convinces us beyond peradventure of a doubt that Rivas at all times thoroughly understood his rights, was exhaustively informed as to his situation, and knew that what might have been an “included offense” in the first count was being dismissed as embodied in the second count.
This appellant has in no way been over-reached, misinformed, or uninformed either as to his rights prior to the entry of the plea or as to the alternatives he might have pursued.
The judgment of the District Court is
Affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_district
|
H
|
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".
MURPHY v. CITY OF ASBURY PARK et al.
No. 8378.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 22, 1943.
Decided Jan. 14, 1944.
Ward Kremer, of Asbury Park, N. J. (Joseph F. Mattice, of Asbury Park, N. J., on the brief), for appellant.
Theodore D. Parsons, of Red Bank, N. J. (Parsons, Labrecque & Borden, of Red Bank, N. J., on the brief), for appellee.
Before TONES, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a personal injury case. The plaintiff was a passenger in an automobile, owned by John J. Bennett and operated by Peter A. Bennett, which collided with one of a series of structures erected on Ocean Avenue, Asbury Park, New Jersey, by that municipality. The accident happened about 6:00 P.M., January 20, 1940, on Ocean Avenue at its intersection with Sixth Avenue in that city. Ocean Avenue runs north and south. It is the most easterly thoroughfare of Asbury Park and is next to and parallels the ocean front. It is 54 feet, seven inches wide. It is a main highway, carrying much of the Asbury Park vehicular traffic and is crossed by pedestrians going to and from the beach. At the time of the accident, there was in existence, a set of standards at intervals along the center of Ocean Avenue for substantially its length, or at least for a number of blocks. The standards had bell-shaped concrete bases. The bottom diameter of such base was 4 feet, its height was 3L/z feet. From the top of the base, a vertical metal column extended about 10 feet further into the air. At the top of the column there was an electric light fixture. In addition, some of the poles had traffic lights attached to them. The particular standard identified with the collision, did not. It did, however, have an inlaid sign on its base reading “Sixth Avenue,” which was the east-west street opposite and deadending into Ocean Avenue. ' The particular base had painted on it the words “No center parking.”
The Bennett automobile had been proceeding north on Ocean Avenue and to avoid hitting a car, Peter Bennett turned out to his left and struck the standard. In the District Court, there was a judgment in favor of the plaintiff and against the driver, Peter Bennett, and the City of Asbury Park. This appeal is taken by the City of Asbury Park. The defendant, Peter Bennett, did not take any appeal.
It is evident that the standard was a part of Asbury Park’s lighting and traffic system on Ocean Avenue. The municipality itself installed and maintained that system, including the particular stanchion in question. The fundamental question in the case is whether it was authorized by law. If it was, then, as Judge Biggs, speaking for this Court, said in Delaware, Lackawanna & Western Railroad Company v. Chiara, 3 Cir., 95 F.2d 663, at page 664: “* * * members of the public, including the appellees, are required to take notice of its presence and situation, and the learned trial judge should have directed a verdict for the appellant as prayed for by it.”
It is not clear from the testimony just when the standards were erected. The only one of plaintiff’s witnesses who ventured to hazard a date, fixed the time as about 1927. Plaintiff’s attorney, in response to the Court’s questions, said that from the best proof they had, the standard had been erected approximately fifteen years prior to the trial date which was M ay 1942 and which woi:ld make the construction date approximately 1927. The date of construction is not mentioned in the trial court’s charge. However, in the opinion on the motion to set aside the verdict, the court, from language in one of the Asbury Park ordinances in evidence inferred that the standards were erected in 1921. In any event, 1921 is the earliest possible date.
In 1917, the New Jersey Legislature passed what is popularly called the “Home Rule Act” (P.L. 1917, Chapter 152, pages 319, 410, N.J.S.A. 40:42-1 et seq.). Paragraph 1, Article XXIV of that Act reads as follows: “1. The governing body of every municipality shall have power by ordinance to cause the streets and public places of such municipality to be lighted, to acquire all necessary lands and real estate for that purpose by purchase, gift or condemnation, and to erect thereon all necessary buildings and to equip the same with all necessary machinery and equipment, and to erect and maintain on or under said streets and public places all necessary poles, conduits, wires, fixtures and equipment, and to operate such lighting system at public expense.” N.J.S.A. 40:67-13.
That law as it reads was in effect in 1921. It will be noted that a municipality was directed to proceed by ordinance. In 1921, Asbury Park enacted its ordinance No. 335 which ordained “that the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue be installed and completed, and that the paving of Ocean Avenue Boulevard be completed * * In the same ordinance, the cost “for the extension and completion of the sewers and drains and bases for lamp standards in Ocean Avenue and for the completion of the paving of said Ocean Avenue” was estimated at $52,000.
In 1927 Asbury Park passed Ordinance No. 454 which referred to the previous Ordinance No. 335, saying that the work called for by the latter had been completed and authorizing a bond issue to pay for same.
In Paragraph 5(a) of Ordinance No. 454 appeared the following sentence in parenthesis: “(The original average periods of usefulness of said improvements being twenty years, six years of the period of said usefulness having already expired and leaving remaining fourteen years.)” This referred to all of the improvements mentioned in the ordinance, including “the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue.” It is from the above that the trial court assumed that the standard, with which we are concerned, was erected in 1921.
In 1923 a supplement to the 1917 Home Rule Act was enacted, P.L. 1923, Chapter 92, page 178, N.J.S.A. 40:67-16. That reads: “1. The governing body of every municipality shall have the power to establish safety zones, to erect, construct and maintain platforms, commonly called ‘safety isles’; to erect, construct, maintain and operate standards, commonly called ‘silent policemen,’ beacon lights, guide posts or other structures, which in its judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.”
As is seen, the 1923 statute contained-no restrictions on municipalities as to the necessity of proceeding by ordinance. This statute was more concerned with traffic regulation and control than with lighting, which latter had been the primary purpose of the 1917 Act.
A photograph of the stanchion, one of the exhibits in the case, was before this court on the argument of this appeal. It gives a general idea of the Ocean Avenue light and traffic setup. From it, and the other facts in the case, it is clear that the particular stanchion is authorized under both the 1917 and the 1923 statutes. It is in reality an ornamental pole or fixture set in a wide base and serving the double purpose of street lighting and traffic assistance. The appellant argues at length that the structure was not specifically authorized by either law. It is true that the Legislature did not in either Act, see fit to detail exact dimensions of “light poles” or of “standards, commonly called silent policemen, beacon lights, guide posts or other structures, which in its (the municipality) judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.” However, having in mind that both Acts were general laws, applying to every municipality in New Jersey and to an endless variety of local conditions, it is difficult to conceive how either law could be more specific and at the same time enable the municipalities of the State- to function for practical purposes under them, in the respects indicated. As was said in Denzer v. D., L. & W. R. Co., 103 N.J.L. 95, 134 A. 820, at page 821, by the New Jersey Court of Errors and Appeals: “* * * the inquiry must be whether the particular structure is authorized by law; and whether a structure in one place differs from one in another is beside the mark.”
Though it is extremely doubtful from the evidence, assuming that the standards were constructed in 1921, we think that the 1923 statute is applicable. That law, in addition to giving the municipalities the power to erect standards, etc., in the .same sequence specifically authorizes them to maintain and operate such standards, etc. The language fairly embraces municipal structures of the type designated as were in existence at the time the 1923 Act came into being and authorizes their maintenance and operation. The Legislature in its effort to assist municipalities with their then increasing traffic problems never intended to create chaos. It certainly did not intend forcing the municipalities of the entire 'State to make the stupid, costly gestures of tearing down existing traffic structures and immediately thereafter erecting similar ones guided entirely by their judgment as to what was necessary for the safety and convenience of persons and vehicles using the streets of the municipalities. That such retrospective law is valid seems well settled. Professor Dillon in his work on Municipal Corporations, 4th Edition 2, page 780 says: “By virtue of its authority over public ways, the legislature may authorize acts to be done in and upon them or legalize obstructions therein which would be otherwise deemed nuisances.”
In Calder v. Bull, 3 Dall. 386, at page 391, 1 L.Ed. 648, Justice Chase said:
“Every law that is to have an operation before the making thereof, as to commence at an antecedent time; * * * is retrospective. But such laws may be proper or necessary, as the case may be. * * *
“There are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement.”
The issue herejs controlled by New Jersey law and the statutes and decisions of that State have been carefully examined in this light. It is settled in New Jersey that there can be no recovery as the result of a collision with a legalized permanent obstruction on a highway. In Lorentz v. P. S. R. Co., 103 N.J.L. 104, 134 A. 818, 49 A.L.R. 989, which is a New Jersey Court -of Errors and Appeals case, an automobile collided with an elevated structure maintained by the defendant utility company on Central Avenue, Jersey City, New Jersey. It was shown that the structure was authorized by a New Jersey statute which contained a general authority to erect structures of that type. There was also an ordinance of Jersey City permitting its construction. The Court said at page 818 of 134 A.: “From what has been said it should be sufficiently obvious that the structure in question was a lawful one, sanctioned by legislative and municipal authority. It is elementary, of course, that any unlawful obstruction of the highway is prima facie a nuisance, and that the party responsible for it is liable in damages to the one injured thereby. This was the theory of the leading case of Durant v. Palmer, 29 N.J.L. 544. But it is equally well settled that the Legislature may legalize what would otherwise be a nuisance.”
The Chiara case, supra, also involved a personal injury claim arising out of a New Jersey accident and decided under New Jersey law. There, an automobile collided with the base of a support of defendant’s railroad bridge crossing Henderson Street, Jersey City. This Court said on page 664 of 95 F.2d: “The sole question presented for our consideration is whether or not the structure in question was a lawful one, sanctioned by legislative and municipal authority. Under the law of New Jersey, as construed by the Court of Errors and Appeals, any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby. It is equally well settled that the Legislature may legalize what otherwise might be a nuisance.” Citing the Lorentz case and a number of other New Jersey decisions.
In this view of the case, since the standard was authorized by law, it follows that the question of alleged active negligence on the part of the municipality does not arise. The trial court should have directed a verdict for the appellant as prayed for by it.
The judgment of the District Court is reversed.
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_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.
Enrique NAVARRO, Individually and as President of Local 2 of International Union of Police and Protection Employees—Independent Watchmen’s Association, and on Behalf of All Members Similarly Situated, Plaintiffs-Appellees, v. John J. GANNON, Individually and as President of Independent Watchmen’s Association, Defendants-Appellants.
No. 79, Docket 31444.
United States Court of Appeals Second Circuit.
Argued Oct. 9, 1967.
Decided Nov. 20,1967:
Charles P. Axelrod, New York City (Robert M. Heller and Philip Pierce, Heller & Pierce, New York City, on the brief), for plaintiffs-appellees.
•Jerome H. Shapiro, New York City (Wilfred L. Davis and Joy M. Holz, New York City, on the brief), for defendants-appellants.
Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
LUMBARD, Chief Judge :
This appeal raises an important question under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq.: whether the guaranty of the right in Section 101(a) (1) and (2) of the Act to meet, assemble and discuss matters properly before a union meeting justifies injunctive relief against threatened supervision of a local union’s meeting by representatives of a parent labor organization. We hold that the LMRDA secures the right of union members to meet without interference from the international union except where the parent organization acts in accordance with lawfully established procedures to institute a trusteeship over the local union. We therefore affirm the order of the Southern District which granted the motion of appellees for a preliminary injunction.
The plaintiff, Enrique Navarro, as an individual member and as President of Local 2 of the International Union of Police and Protection Employees — Independent Watchmen’s Association, brought this action under Section 102 of the LMRDA, 29 U.S.C. § 412 against the defendants, John J. Gannon, individually and as President of the Independent Watchmen’s Association, an international union of which Local 2 is an affiliated local.
The plaintiff sought an injunction restraining the defendants from interfering with the meeting of Local 2 scheduled for February 19, 1967 on the ground that such interference would be in violation of the LMRDA, the constitution of the I. W. A. and the bylaws of Local 2; in particular, plaintiffs sought to restrain defendants from assuming control of the Local meeting, from barring Local counsel from the meeting, from interfering with the right of members to express views on matters properly before the meeting, and from interfering with the right to have Local officers preside over the meeting. Plaintiffs also sought a declaratory judgment that the threatened acts described in a letter of February 9, 1967 to the members of Local 2 violated the I. W. A. constitution, the bylaws of Local 2, the provisions of 29 U.S.C. § 411, and the Constitution of the United States.
The letter of February 9, 1967 was signed by James J. McFaun, Secretary-Treasurer of the I. W. A. and was written at the direction of the defendant. In the letter to members of-Local 2, defendant indicated an awareness of “problems which have existed in your Local,” in particular the desire of some members to disaffiliate from the I. W. A., the action of the Local in replacing its counsel, the attempt made within the Local to change the insurance company responsible for administering the welfare program. The letter then announced that Gannon, the International president, had directed that the International vice-president attend and preside over the Local meeting, that the International secretary-treasurer and Sergeant-at-Arms assist him, and that no counsel be permitted to attend. On February 17, 1967 Judge Motley issued an order temporarily restraining the I. W. A. from such interference. The next day, February 18, 1967, Judge Anderson denied the defendant’s application to stay the order. After a hearing on March 14, Judge Metzner, in an order entered on May 3, 1967, granted the plaintiff’s motion for a preliminary injunction and denied defendant’s cross-motion to dismiss the action.
The order issued by Judge Metzner enjoined the defendants from assuming control of any meetings of Local 2; from attending any meetings, or participating in them except as provided in the constitution of I. W. A. and the bylaws of Local 2; from interfering with the attendance of counsel at meetings of Local 2; from interfering with the right of Local 2 members to meet and assemble freely; from preventing the expression of views upon business properly before the meeting; from interfering with the right of officers of Local 2 to preside at meetings of their local union. We agree with Judge Metzner that the rights of the plaintiff, protected by federal law, were threatened by the defendants and we find that the injunction was a proper exercise of his discretion.
Defendants appeal from the preliminary injunction, contending first that no violation of any right secured by Section 101(a) (1) and (2) was shown to justify the order; and second, that the issue was mooted by the holding of the meeting on February 19 without interference, and that there was no showing of the likelihood of future interference.
Section 101(a) (1) guarantees in pertinent part the right of every member of a labor union “to attend membership meetings and to participate in the deliberations * * * of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” And Section 101(a) (2) secures the “right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, '* * * upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings.” To protect these rights, Section 102, 29 U.S.C. § 412, provides that suit may be brought in the federal courts for appropriate relief.
As Local 2 is an affiliate of the I. W. A., its members are bound by the terms of the I. W. A. constitution. Under Article XV, the International Executive Board is given power to discipline any local union or member who, after notice and hearing upon charges, is found guilty of “dishonesty, misconduct, or conduct detrimental to the welfare of the I. W. A., or of violating any provision of this Constitution.” Under Article XVII, the International is given authority to establish a trusteeship over any local for the purpose of correcting corruption or malpractice, to assure that the local will carry out responsibilities as a bargaining representative, or under a bargaining agreement, to restore democratic procedures, or to otherwise carry out the purposes of the I. W. A. These specified purposes follow exactly the requirements for establishing trusteeships imposed by Title III of the LMRDA, 29 U.S.C. § 461 et seq. Article IX of the I. W. A. constitution gives the International President “other and further powers in addition to those herein enumerated and [he] shall perform such other and further duties as are usual to his office and as are performed by the president in accordance with the practices of the I. W. A.” The defendant seeks to justify the supervision outlined in the letter of February 9, 1967 to plaintiffs, not on Article XVII governing trusteeships, nor on Article XV dealing with discipline of local unions and local members, but on the additional and unspecified powers granted to the International President by Article IX of the constitution.
The question before us is whether the rights guaranteed by Section 101 of the LMRDA include the right of local members to run the affairs of their union without interference from the international union with which they are affiliated. This question was apparently not considered in the congressional debates leading to passage of the Bill of Rights in the LMRDA. That the legislative history of these provisions of the Act includes no mention of circumstances such as those which give rise to this ease does not compel the conclusion that no protection was, intended by the Congress. The Bill of Rights that appears as Title I of the Act was hastily drafted and.included without much debate. The debate on the guaranty of a right of assembly in Section 101(a) (2) was chiefly concerned with enabling members to confer outside regular meetings for the purpose of discussing union affairs without fear of reprisal by union officials. 105 Cong. Rec. 5812 (daily ed. April 22, 1959) (remarks of Sen. McClellan); see 105 Cong. Rec. 14,336 (daily ed. August 12, 1959) (remarles of Rep. Derwinski). To make this clear, a semi-colon was inserted separating the clause dealing with rights of speech and assembly át such rump sessions from the provisions for freedom of speech at regular meetings, on which we rely here, see 105 Cong.Rec. 6021 (daily ed. April 25, 1959).
Without any express indication of congressional intent, we must determine whether Section 101(a) (2) guarantees a right to meet without interference from the international union by considering the broad purposes of the Bill of Rights. This we have done, and the conclusion that such a right is comprehended by the law seems inescapable. We hold that the guaranty in Section 101(a) (1) of the equal right to participate in the deliberations and voting at union meetings, and the guaranty in Section 101(a) (2) of the right to express views upon business before the meeting necessarily encompass the right to assemble, consult and decide matters of concern to the local union without the inhibiting presence and control by international officials.
The LMRDA was enacted with the clear purpose of assuring “the full and active participation by the rank and file in the affairs of the union.” American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-183, 85 S.Ct. 300, 307, 13 L.Ed.2d 214 (1964). The Congress by passing a “Bill of Rights” for union members determined that the efficiency of a monolithic union under autocratic rule was gained at too great a price if it necessitated any sacrifice in the members’ rights to determine the course of their organization. The balance was struck in favor of union democracy. Only a union responsive to the rights of all its members can achieve the ideals of responsibility, opportunity and self-determination that are recognized as fundamental values in the labor movement.
To effectuate that determination, the Bill of Rights was incorporated into the Act, guaranteeing each union member protection against infringement of his rights to vote, to meet, and to participate in discussions on matters of concern to him and his union. These rights are protected against incursion or subversion by the individual’s own representatives, the officers of his union. Thus, the individual member cannot be disciplined for criticizing or even defaming those officers, Salzhandler v. Caputo, 316 F.2d 445 (2 Cir. 1963), and the official of a local union will not be permitted to retaliate against members who attend meetings to consider affiliation with an international union. Johnson v. Local Union No. 58, International Brotherhood of Electrical Workers, 181 F. Supp. 734 (D.C.Mich.1960). These rights should be similarly protected against invasion from without the local, for the guarantees carefully enforced against officers of the local would amount to nothing if they could be enjoyed only by the grace of the International.
There can be little doubt that these secured rights of speech and assembly would be compromised if the Local meeting is taken over by the International. The right of assembly must include the right to meet under the supervision of the representatives chosen for that purpose. That is the cornerstone of democratic rule — that the government is freely chosen by the governed. And the representatives, the officers of Local 2, may not be shunted aside without gravely endangering the individual rights of the members.
In attempting to assume control of the meeting of Local 2, the International Union purported to act in order to ensure the rights of local members- — but we see in the record before us no indication that any interest of the Local membership was being abused by their chosen representatives. And if the Local officers show insufficient respect to the views of the rank and file, there exist remedies for such infringement within the union organization and by access to the courts. But the defendants have pointedly chosen not to establish a trusteeship according to the procedures set out in Article XVII of the Constitution and Title III of the LMRDA, and in the absence of such recourse, the autonomy of the local union should be our primary concern.
The international union concededly acted to restrain a recalcitrant local from leaving the fold — but the guaranty of self-determination contained in Title I of the Act protects the Local members against such unwanted beneficence. The fundamental requirement of union democracy is that decisions are made according to the expressed desires of those affected; and this requirement is met only where there is full freedom to criticize, to dissent, and to oppose. The best guaranty of this freedom is that the Local meeting be run by the elected officers of the Local; to have hostile outsiders attempt to manage the meeting, determine who may attend, and who is to be recognized is the surest way to stifle and destroy the very rights which the Act seeks to protect.
The principle of union democracy encompasses, as Clyde Summers has said, “the right to choose, even unwisely, [for] self-government is self-fulfillment.” We need not dispute the contention of defendant Gannon that “it is greatly to the advantage of each and every guard to belong to a Union, which is as large as possible so that we will have greater bargaining power and greater financial stability.” Union autocracy may indeed be more effective in mobilizing the collective power of workers to gain greater material benefits. But Congress determined that the aims of labor organizations were broader, that the ideals of responsibility and self-determination must be weighed with the goal of economic security, and that union democracy was so important to those ideals that it should be protected as a matter of national policy. Professor Cox has said:
“The law cannot create the spirit of self-government. It cannot compel union members to attend meetings or hold their officers to strict accounting. It cannot compel members to see in labor unions something more than service organizations hired to obtain benefits in return for dues. The most the law can do is to secure the opportunity for workers who wish to take an active part in democratic unions without undue loss of personal freedom.”
In electing a new slate of officers in 1965, in asking whether the present insurance company was administering the welfare program successfully, and even in asking whether their particular interests were best served by affiliation with I. W. A., the members of Local 2 were exercising their rights of self-government. Their activity and spirit might be an embarrassment to the I. W. A.; a uniform stance rather than the independence and controversy guiding Local 2 might be preferable to the International. But in Title I, the legislature indicated its preference in union government no less than in political government for the tumult of democracy rather than the order of imposed authority. In particular, Section 101(a) (2) ensured the right of every member to “express at meetings of the labor organization his views, upon * * * any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings”. We think it essential to the effectiveness of this guaranty, and implicit therein, that the members be frée from inhibiting controls imposed on their meetings from without. The Local has the authority to impose reasonable rules to maintain the order and decorum needed to dispose of the business of the meeting, but that proviso gives no authority for a take-over by the parent organization.
Nor is our conclusion in conflict with other decisions of this court and of the Supreme Court denying relief under Section 102 of the Act. It should be noted that the bounds of guarantees of the Bill of Rights in Title I as determined by the courts are still, some eight years after its enactment, in the early stages of development. In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court held that the specific requirements in Title IV, Section 401(e) governing eligibility for office precluded an inference of similar rights in Section 101(a) (1), and that therefore a bylaw requiring that members nominate only themselves for office could not be attacked as a violation of the guarantees of equal voting rights in Section 101 (a) (1). Justice Black clearly implied that the voting rights protected by Section 101(a) (1) must be directly attacked to warrant suit under Section 102. This court was guided by that implication in finding that the right to equality in voting was not violated by the action of the executive board of the union arbitrarily voiding the result of a vote after it is taken. Gurton v. Arons, 2 Cir., 339 F.2d 371 (1964). But here we rely not on the threat from the International to the voting rights of Local 2 although it would seem that there exists justification for finding that these rights would be attacked, whether directly or indirectly, if the International were permitted to take over the meeting. Here we deal instead with a threatened invasion of the members’ right of free discussion, and we find that guaranty encompasses the right to meet under the direction of their own officers untrammelled by outsiders who by their own admission are dissatisfied with the course of action freely taken by the local.
That position is not at odds with the opinion of this court in Yanity v. Benware, 2 Cir., 376 F.2d 197 (1967). In that case, this court held that the right to meet and assemble freely in Section 101(a) (2) of the Act does not create a right to call meetings of the membership, but rather insures the right to assemble outside regular meetings without fear of reprisal from the union. Thus, it was found that the failure of the union officers to convene a special meeting as they were required to do by their bylaws was not a violation of Section 101(a) (2) and did not justify an action under Section 102. But here we rely not on the meet and assemble clause of the Act, but on the right of discussion at regular meetings which have been called. The majority in Yanity explicitly avoided any examination of the scope of this right because the connection between the alleged violation and the injury suffered was too speculative and remote: “We need not decide the extent to which this provision creates a federal right to bring any appropriate business before a union meeting and have a vote upon it.” 376 F.2d at 200. In this case we decide only that Section 101(a) (2) does create a federal right to discuss matters before a union meeting without the inhibiting presence and supervision of International officers. We need not resolve whether that includes the right to discuss any particular matter, since it seems clear to us that free discussion is impossible if the forum is under the control of superior force, with foreigners patrolling the meeting chamber and exercising the prerogatives of the chair.
The appellant contends that no injunction should issue.because there has been no actual interference with--the rights of free discussion or assembly. But surely we need not wait until the meeting is held and the members have been suppressed in the exercise of their statutory rights. The potential for suppression of views, indeed the purpose to interfere in the affairs of the local is clear from the defendants’ letter, and we know from political experience that once suppressed, the democratic spirit may not soon be revived in Local 2.
Appellant argues, too, that the issue is moot since the letter referred only to the meeting scheduled for February 19, 1967, and that meeting has passed without incident. But the likelihood of interference remains; we have no assurance that the same instinct for control over the activities of Local 2 will not govern the I. W. A. in the immediate future. Injunctive relief is proper when “cessation of illegal conduct did not diminish the risk of future similar conduct”. Lanigan v. Local 9, International Brotherhood of Electrical Workers, 327 F.2d 627 (7 Cir.), cert. denied 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964). See Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944); Local 74, United Brotherhood of Carpenters and Joiners v. N. L. R. B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 652 (1951). The district judge acted well within his discretion in granting the injunction.
The order of the district court is, accordingly, affirmed.
. 29 U.S.C. § 411(a) (1);
“Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.”
29 U.S.C. § 411(a) (2):
“Freedom of speech and assembly.— Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.”
. 29 U.S.C. § 412:
“Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”
. Although an officer of the union, plaintiff may bring this action to protect his secured rights as an individual member. Salzhandler v. Caputo, 316 F.2d 445 (2 Cir. 1963); Grand Lodge of Intern. Ass’n of Machinists v. King, 335 F.2d 340 (9 Cir. 1964), cert. denied 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334.
. In the letter to the members of Local 2, defendants directed that:
“1. First Vice-President Kirby attend your next stated meeting called for February 19, 1967 and act as chairman of such meeting.
2. Secretary-Treasurer McFaun and Sergeant-at-Arms Mancina attend such meeting and assist Vice-President Kirby in conducting same.
3. Secretary-Treasurer McFaun be appointed to take true and exact minutes of such meeting.
4. No counsel be permitted to attend this meeting.
5. Only members of the Local in good standing on proper showing of dues books be permitted to participate in the meeting and that all other persons other than those members of Local 2 in good standing and the International Officers specified herein be excluded from participation in the conduct of such meeting.”
. Defendants were enjoined from:
“1. Assuming control of any membership or Executive Board meetings of Local 2, International Union of Police and Protection Employees — Independent Watchmen’s Association;
2. Attending any membership meetings of Local 2, or participating in the deliberation and voting upon the business of such meetings except as provided in the Constitution of the Independent Watchmen’s Association and the ByLaws of Local 2, International Union of Police and Protection Employees — Independent Watchmen’s Association;
3. From interfering with the attendance of counsel for Plaintiffs at meetings at Local 2;
4. From directly or indirectly in violation of the Constitution of the Independent Watchmen’s Association, By-Laws and Charter of Local 2 hindering or interfering with the right of plaintiff and all other members of Local 2 to meet and assemble freely with other members;
5. From preventing the expression at meetings of Local 2 views upon any business properly before the meeting;
6. From denying or interfering with the right of duly elected officers and officials of Local 2 to preside over the meetings of the aforesaid Local, all on the ground that such action by the defendants is and will be in violation of 29 U.S.C. 411-413 and 29 U.S.C. 529.”
. An action may not be brought under Section 102 of the LMRDA to enforce provisions of the union constitution, Yanity v. Benware, 376 F.2d 197 (2 Cir. 1967), and no provision of the International constitution can define or limit the rights conferred by Title II of the Act. Johnson v. Nelson, 325 F.2d 646 (8 Cir. 1963). It is only when, as here, a claim is made that the constitution is being applied in such a way as to deprive the local members of their secured rights that the documents may be considered. Gurton v. Arons, 339 F.2d 371, 374 (2 Cir. 1964). We refer to the constitution only to show that it provides procedures by which abuses in local unions may be controlled by the International, and to indicate that the defendants here chose not to follow those procedures, or even to allege such abuses, but instead sought to assume control of the local under their general supervisory authority. This they cannot do if assumption of control involves a deprivation of a right protected by the Act.
. The asserted control in this case would seem to come within the definition of trusteeship in the Act. Section 3(h) defines trusteeship to mean any “method of supervision or control whereby a labor organization suspends the autonomy otherwise available to a subordinate body under its constitution or bylaws.” 29 U. S.C. § 402(h). In Title III of the Act, imposition of trusteeship is subjected to regulations specifying the purposes for which it may be imposed and providing a civil action for enforcement of the requirements. See Cox, The Role of Law in Preserving Union Democracy, 72 Harv.L.Rev. 609, 635-44 (1959) outlining the case for federal legislation regulating trusteeships. Professor Cox played a critical role in the process of drafting legislation, and his suggestions were followed closely in the statute as enacted. See Anderson, Landrum-Griffin and the Trusteeship Imbroglio, 71 Yale L.J. 1460, 1498-1500 (1962); Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851, 898-902 (1960). We need not decide whether the defendants’ action was a lawful trusteeship under its constitution and the Act; nor should we speculate on the reasons behind the plaintiff’s decision to bring the suit under Section 102 rather than Section 304. In Schonfeld v. Raftery, 2 Cir., 381 F.2d 446 (Aug. 10, 1967), this court upheld an injunction granted under Section 304 to terminate an unlawful trusteeship. In Flaherty v. McDonald, 183 F.Supp. 300 (S.D.Calif. 1960), it was held that Section 101(a) (1) did not create a right to challenge removal of local officers by an international union acting under the authority of an allegedly improper trusteeship
. The Bill of Rights was originally introduced as an amendment on the Senate floor by Senator McClellan which was revised three days after its passage in an amendment introduced by Senator Kuchel, which was embodied without relevant change in the Landrum-Griffin bill in the House. That bill was adopted in committee and under the prevailing rule could not be amended on the floor. See, e.g., Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 831-42 (1960); Rothman, Legislative History of the “Bill of Rights” for Union Members, 45 Minn.L.Rev. 199 (1960). The legislative history of the Bill of Rights is reproduced at 2 Legislative History of the Labor Management Reporting and Disclosure Act of 1959, 1102-1119, 1220-1239, U.S. Code Cong. & Admin.News 1959, p. 2318.
. Summers, Democracy in Trade Unions, The New Leader, Feb. 10, 1958, p. 7.
. Cox, The Role of Law in Preserving Union Democracy, 72 Harv.L.Rev. 609, 644 (1959).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Benita GARVIN, as next friend for Peter Link, individually and on behalf of others similarly situated and on behalf of the Redford Student Mobilization Committee, a non-profit unincorporated voluntary association, Plaintiffs-Appellants, v. Arthur ROSENAU, individually and in his capacity as principal of Redford High School, et al., Defendants-Appel-lees.
No. 71-1473.
United States Court of Appeals, Sixth Circuit.
Feb. 7, 1972.
Ronald Reosti, and Gabe Kaimowitz, Detroit, Mich., for plaintiffs-appellants; Lafferty, Reosti, Jabara, Papakhian, James, Stickgold, Smith & Soble, Detroit, Mich., on brief.
Carl H. von Ende, Detroit, Mich., for defendants-appellees; Miller, Canfield, Paddock & Stone, Detroit, Mich., on brief.
Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.
WILLIAM E. MILLER, Circuit Judge.
A group of students associating as the Student Mobilization Committee complains that the principal of Redford High School in Detroit, Michigan, infringed upon its First Amendment guarantee of free speech and other constitutional rights. Specifically, the students allege that because their organization espouses a “partisan” idea, it is denied the opportunity to express and promote its point of view within the school. The student association (SMC) desires to have the same benefits accorded to other student groups “recognized” by the school administration. The complaint seeks relief pursuant to 42 U.S.C. § 1983 and asks for a declaratory judgment that the denial of recognition to the organization violates the First, Fourth, and Fourteenth Amendments. It further seeks an injunction restraining the defendants from interfering with the constitutional rights of the students. The defendants in the court below denied that any of the students’ rights were violated. In the district court, the parties agreed that all argument and testimony relevant to the issue would be presented at a hearing on a motion for preliminary injunction and that such hearing would be treated as one upon the merits. Following the hearing, the district court entered an order abstaining from a decision and dismissing the complaint. From that order the students appeal.
The student organization involved here is a high school chapter of the nationwide Student Mobilization Committee. The Redford SMC opposes United States intervention in Southeast Asia and wishes to express the club views at Redford High School. The student group sought official school recognition by complying with prescribed conditions and submitted to the defendant principal a statement of its aims and constitution. The principal denied recognition because “ . . . the general policy of the school was opposed to recognizing political activity groups representing one point of view.” Without official recognition, a school group cannot announce club meetings, cannot use school bulletin boards or put up posters in the school buildings, cannot have a club booth in the school or distribute literature therein, cannot raise funds for the organization within the school, cannot plan assembly programs, and cannot meet in school facilities at all during the school day. Such a group could, however, apply for after-school use of school facilities, with charge, through the Community Use of Schools Division of the Board of Education. Such withholding of privileges is not imposed as to “recognized” clubs which supposedly do not express the proscribed “partisan” ideas.
The justification for the prohibition against clubs which express a “partisan” point of view is that the principal is “very much concerned about the permitting of any one group that represents one idea only carrying the imprimatur of Redford High School,” and that the principal is “very much concerned that clubs of this kind could be a very divisive element.” No evidence was presented that the students involved had interfered with school discipline or the rights of others.
The principal stated that, in keeping with the general policy of the school, no other group supporting one point of view, such as the Young Republicans or the Young Democrats, was given recognition. An Ecology Club was, however, recognized. The principal stated that its purpose was to create a better environment. He found a categorical difference between the idea supported by the SMC and the idea supported by the Ecology Club. Although the principal indicated that he was unaware of any partisan political position taken by the Ecology Club, a student member of that group testified that the club distributed literature within the school supporting a particular piece of Michigan legislation allowing private citizens to sue polluters. He further testified that the club actively opposed the construction of the Supersonic Transport.
As stated, the district court applied the doctrine of abstention. The order of the court stated:
Having considered the pleadings, briefs, and affidavits in this matter, it is the opinion of this Court that this matter would be more appropriately handled by the state courts. See Wisconsin v. Constantineau [400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515] 39 U.S.L.W. 4128, Chief Justice Burger dissenting at 4129, (1971); Alberda v. Noell [322 F.Supp. 1379], No. 3060 (E.D.M. February 17, 1971). The court wishes to make it clear that it expresses no view as to the merits of this case, and that it expects that the plaintiffs will be able to have a hearing on the merits in the state court. This Court abstains.
In view of the foregoing, it is hereby ORDERED that the case is dismissed.
Because we disagree with the district court’s abstention, we shall consider first, the apparent basis for the court’s order and second, our conception of the propriety of the abstention doctrine in the particular circumstances of this case.
In concluding that “this matter would be more appropriately handled by the state courts,” the court below cited only Chief Justice Burger’s dissent in Wisconsin v. Constantineau, 400 U.S. 433, 439-443, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), and Alberda v. Noell, D.C., 322 F.Supp. 1379 (1971). The Chief Justice’s dissent and the district court decision (the latter in turn relying upon the Constantineau dissent) express a common concern. Both deplore the congestion of the federal courts and the presence in those courts of “state” cases considered undesirable.
In Constantineau, supra, a state statute was attacked as violating procedural due process. The statute allowed designated persons, without notice or hearing, to cause to be posted, in all retail liquor outlets a notice that sales or gifts of liquor to named excessive drinkers were forbidden. Although the statute had never been construed or challenged in the Wisconsin courts, the Supreme Court held that the three-judge court properly refused to abstain. In dissenting, the Chief Justice states:
This Court has an abundance of important work to do, which, if it is to be done well, should not be subject to the added pressures of non-urgent state cases which the state courts have never been called on to resolve. 400 U.S. at 443, 91 S.Ct. at 513.
The court in Alberda v. Noell, supra, was presented with constitutional challenges to certain school dress and grooming regulations. The plaintiffs had not sought relief in state court. After a lengthy opinion, the district court abstained from a decision. The court’s opinion quoted the above-cited portion of the Constantineau dissent and subsequently concluded that the issues were local school matters which would be more appropriately resolved by the state. The Alberda court made clear its dislike of the “hair” cases and other cases involving “local school matters.” The court found “no right, considered especially important by the federal judiciary, threatened; we see no irreparable harm flowing from declining federal jurisdiction.” It disapproved of those who would “foist these cases upon the severely beset and overburdened federal courts.” 322 F.Supp. at 1383-1384.
It would thus appear that the district court’s abstention was grounded upon its concern for judicial economy and its belief that “local school matters” should be handled by state courts. We do not find either consideration sufficient for invoking the abstention doctrine. We think the Supreme Court in Zwiekler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967), effectively responded to the district court’s view of abstention:
In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, “. . .to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . .,” Robb v. Connolly, 111 U.S. 624, 637, [4 S.Ct. 544, 28 L.Ed. 542.] “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.” Staple-ton v. Mitchell, D.C., 60 F.Supp. 51, 55; see McNeese v. Board of Education, etc., 373 U.S., [668] at 674, n. 6, [83 S.Ct. 1433, 10 L.Ed.2d 622.] Cf. Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257.
The Court then stated that “[t]he judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, [61 S.Ct. 643, 85 L.Ed. 971,] sanctions such escape only in narrowly limited ‘special circumstances.’ ” In concurring in the Zwiekler judgment, Mr. Justice Harlan noted that:
This Court has repeatedly indicated that “abstention” is appropriate “where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.” 389 U.S. at 255, 88 S.Ct. at 399.
The mere statement of the standards for abstention: avoidance of unnecessary constitutional decisions and avoidance of needless friction with state policies, displays their vagueness and indicates the potential difficulties in their application. For example, if the “avoidance of needless friction” standard were applied without due consideration, very few federal question cases challenging any aspect of state law or state authority would be appropriate for the federal courts. For a proper application of the standards, therefore, we look to the circumstances of the cases in which the doctrine has been applied.
The Pullman case first articulated some of the concerns underlying abstention to avoid unnecessary constitutional adjudication. There the Texas Railroad Commission ordered that every sleeping car must be in the charge of a conductor rather than a porter. Conductors were Caucasian while porters were Negro. The Pullman Company and the Negro porters attacked the order as unauthorized by Texas law and as violative of the Constitution. The Court abstained so that the state issue of statutory authority could be determined first. The Court’s concern was that a federal court’s tentative interpretation of a state statute would later be displaced by state adjudication thus leaving an unnecessary constitutional decision. Subsequent cases indicate that such a concern is most evident when a federal court is asked to strike down a state statute which “might be judicially confined to a more narrow ambit which would avoid all constitutional questions.” Fornaris v. Ridge Tool Co., 400 U.S. 41, 44, 91 S.Ct. 156, 158, 27 L.Ed.2d 174 (1970); Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Spec-tor Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944).
The Pullman case also stated the second countervailing interest referred to by Mr. Justice Harlan when it mentioned the desirability of avoiding “needless friction” between federal courts and the states. Abstention on this ground has been justified by the narrow circumstance that exercise of jurisdiction by a federal court would disrupt a comprehensive state administrative process. Alabama Public Service Comm’n v. Southern Ry., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Holmes v. New York City Housing Authority, 2 Cir., 398 F.2d 262 (1968).
While this statement on the abstention doctrine is not intended as a definitive exposition, it is intended to emphasize that abstention is appropriate only in narrowly limited special circumstances. The mere fact that a constitutional decision conceivably could be avoided or that federal-state friction might arise does not automatically justify resort to the doctrine. The facts and circumstances of each case must be carefully examined in order to evaluate the policies to be served by abstention. Thus, resort to abstention is appropriate only if the narrowly limited countervailing interests are, on balance, more important to the federal constitutional system than a litigant’s right to a federal forum.
We turn now to a consideration of the facts and circumstances of the instant case. We note that the answer of the defendants in the court below did not seek to invoke the abstention doctrine. On appeal, however, the appellees recite the shibboleths of abstention and urge their application to the instant case. We do not believe, however, that adjudication of the merits of this case will result in either an “unnecessary constitutional decision” or “needless friction” within the federal system.
Here we deal with alleged infringements upon First Amendment rights. That the First Amendment is the essence of democratic government and that free speech is fundamental to our society need no elaboration. Historically, the guarantees of this amendment have been closely guarded by the federal courts. The Supreme Court in Zwielder suggested the rationale for giving careful scrutiny to the use of abstention when the First Amendment is involved:
In such case to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect. See Dombrowski v. Pfister, 380 U.S. 479, 486-487, [85 S.Ct. 1116, 14 L.Ed.2d 22;] Baggett v. Bullitt [377 U.S. 360], supra, at 378-379, [84 S.Ct. 1316, 12 L.Ed.2d 377]; N.A.A.C.P. v. Button [371 U.S. 415], supra, at 433 [83 S.Ct. 328, 9 L.Ed.2d 405]; cf. Garrison v. Louisiana, 379 U.S. 64, 74-75, [85 S.Ct. 209, 13 L.Ed.2d 125;] Smith v. California, 361 U.S. 147, [80 S.Ct. 215, 4 L.Ed.2d 205.] 389 U.S. at 252, 88 S.Ct. at 397, 398.
See also, Long Island Vietnam Moratorium Committee v. Cahn, 2 Cir., 437 F. 2d 344 (1970); Moreno v. Henckel, 5 Cir., 431 F.2d 1299 (1970).
In this case, the SMC first sought recognition in the spring of 1970. Since that time, it has been denied the opportunities which it seeks to express its point of view. Further delay necessitated by abstention would be inconsistent with the policy of protecting the First Amendment against possible chilling influences. Thus abstention in the present circumstances would have to be justified by strong countervailing interests.
In this case we do not need to construe a state statute to determine whether it applies to the parties involved, nor are we asked to strike down an unclear state statute before state courts have construed it. And neither are we asked to upset a comprehensive administrative process. On the basis of these considerations, we conclude that the interests to be secured by abstention are not so clear or compelling as to justify denial of the appellants’ right to a federal forum.
Because we find abstention inappropriate here, we shall consider appellees’ contention that the case should be dismissed for lack of a substantial federal question. To give a federal court jurisdiction, a federal question must, of course, be substantial. Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co., 252 U.S. 388, 40 S.Ct. 404, 64 L.Ed. 626 (1920). In Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933), the Supreme Court explained substantiality:
The question may be plainly unsubstantial, either because it is “obviously without merit” or because “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Levering & Garrigues Co. v. Morrin [289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062], supra-, Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, [30 S.Ct. 326, 54 L.Ed. 482;] McGilvra v. Ross, 215 U.S. 70, 80, [30 S.Ct. 27, 54 L.Ed. 95.] Id. at 32, 54 S.Ct. at 4.
There is no assertion here that previous court decisions foreclose the issue presented, but appellees do maintain that the question presented is obviously without merit. To be obviously without merit, an alleged constitutional claim might represent an attempt to obtain federal jurisdiction by the mere assertion of a frivolous connection between the constitution and the subject matter of the dispute, or the alleged claim might simply be immaterial to the real controversy. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Our view is that the question presented by the students here is not insubstantial. It cannot be seriously maintained that there is only a frivolous connection between the First Amendment guarantee of free speech and the School Board’s policy of restricting the student group’s expression of partisan ideas. The substantiality of a federal question is not measured by its impact upon society. Certainly the constitutional claim here is no less substantial than the claim of the right to wear a black armband to school upheld in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). We conclude that the complaint may not be dismissed for a lack of a substantial question.
The court below should have considered the contentions of the appellants. On remand, the district court should consider, among other things, the assertion that the defendants have infringed upon the students’ First Amendment rights without justification, and the contention that no compelling reason justifies the challenged classification which penalizes “partisan” ideas. See Tinker, supra, at 512-514, 89 S.Ct. 733, and Zucker v. Panitz, D.C., 299 F.Supp. 102 (1969).
Because the complaint was improperly dismissed, the order of the district court must be vacated and the action remanded for a consideration of the merits of the complaint. This assessment will be made on the basis of the record developed at the hearing without taking further testimony unless the court in its sound discretion should see fit, on motion, to reopen the case for further evidence on behalf of one or more parties. We express no opinion on the merits of the case further than to say that the federal issue is not insubstantial.
. This school policy is an implementation of the policy established by the defendant Board of Education.
. The principal further testified:
Q. You said that you told them they would not be recognized as a school sponsored organization. Did you at that time tell any of the individuals there what if any avenues they did have to express the views which they held?
A. Yes, at the time I recommended that we have classes in American history, civics and economics, in which controversial issues are the meat of our course, in which they are welcome to discuss any of those. I also recommended specifically the current affairs club, which is a club sponsored by social studies, by the department, and the sponsor is, to the best of my knowledge, always a social studies teacher. So here was an open forum for all points of view to be expressed on a balanced position with all sides represented.
% * sfc s>:
. I would much prefer to have these ideas presented in an impartial way, for instance, with our Current Affairs Club.
. Q. Now, the Ecology Club, does the Ecology Club support one particular idea?
A. An idea, yes, of somewhat different category. I think it supports an idea that cleanliness, I guess, which we have promoted over the years, is a policy that we should all follow and so their policy has been, let’s clean up.
Q. All right. In other words, you are saying that the support by the Ecology Club of the policy, let’s clean up, is qualitatively different than the support that the SMC gives to the idea of or the issue of the immediate withdrawal of United States troops from Indo-Ohina?
A. Yes, I see a categorical difference there.
. Another consideration involved the complaint of the Negro porters. “ . . .it touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” 312 U.S. 498, 61 S.Ct. 644. Today the presence of such an issue would be a compelling reason for not abstaining. See, e. g., Wright v. McMann, 2 Cir., 387 F.2d 519 (1967) ; Jordan v. Hutcheson, 4 Cir., 323 F.2d 597 (1963).
. Presumably, in every case in which school regulations on haircuts have been challenged, there was possibly a “state law question” whether the school administration had the authority to issue such a regulation. This justification for abstention has had little acceptance. Jackson v. Dorrier, 6 Cir., 424 F.2d 213 (1970). Parker v. Fry, 323 F.Supp. 728 (D.C.Ark.1971) ; Southern v. Board of Trustees for Dallas Independent School Dist., 318 F.Supp. 355 (D.C. Tex.1970) ; Cf. Alexander v. Thompson, 313 F.Supp. 1389, 1397 (D.C.Cal.1970). Our recent opinion in West Tenn. A.C. L.U. et al. v. City of Memphis, et al., 454 F.2d 1162 directly presented a clear-cut and readily definable issue of state law the resolution of which could conceivably have avoided the necessity to decide the federal constitutional issue, while here the state issue is probably nonexistent in view of the broad authority conferred on boards of education by Michigan statute. (M.C.L.A. Sec. 340.-192).
. The defendants-appellees apparently would not agree with the district court’s abstention for reasons of judicial economy or because of a belief that particular cases simply should be handled by state courts. The brief of appellees, p. 15 states that “[w]e interpret his [Judge Keith’s] citation to Alberda v. Noell [322 F.Supp. 1379], (E.D.Mich., February 19, 1971), as reflecting adoption of Judge Roth’s application of the ‘avoidance of friction’ ground for abstention to school cases.”
. See Baxter v. Ellington, D.C., 318 P.Supp. 1079 (1970).
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_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 re GRAND JURY PROCEEDINGS, John DOE, Appellant.
No. 92-1906.
United States Court of Appeals, First Circuit.
Submitted Nov. 3, 1992.
Decided Nov. 4, 1992.
Robert L. Sheketoff and Sheketoff & Ho-man, Boston, MA, on brief, for appellant.
A. John Pappalardo, U.S. Atty., Michael J. Tuteur and Ernest S. Dinisco, Asst. U.S. Attys., Boston, MA, on brief for appellee.
Before BREYER, Chief Judge, TORRUELLA and CYR, Circuit Judges.
PER CURIAM.
Agents of the federal government, in the course of conducting court-authorized electronic surveillance during a criminal investigation, intercepted communications which involved the appellant. The appellant later was called to testify before a federal grand jury sitting in the District of Massachusetts. He refused to do so, citing his Fifth Amendment privilege against self-incrimination. The government applied for and received a court order directing the appellant to testify and prohibiting the government from using his testimony or its fruits against him in a criminal prosecution. The appellant still refused to testify. The government petitioned for an order holding the appellant in civil contempt. 28 U.S.C. § 1826(a). It supported its petition with affidavits which said that the questions it intended to ask the appellant before the grand jury would be derived in part from the electronic surveillance mentioned above. The appellant then filed a “Motion for Disclosure of Electronic Surveillance Information” which asked the court to instruct the government to disclose certain information relevant to the government’s request for permission to conduct that surveillance.
Invoking the need for secrecy to protect the ongoing grand jury investigation, the government produced only abridged copies of the documents requested. The court conducted a contempt hearing at which it ruled on the adequacy of the government’s response. Before the hearing, the district judge had reviewed and compared the expurgated and unexpurgated versions of the documents. At the hearing, the judge ruled (a) that the government had “an obligation to preserve the secrecy of the grand jury,” (b) that he did not see anything in the deleted material “that could be of value to [the appellant],” and (c) that after reviewing the unabridged documents he had concluded that the appellant “does not have any basis, that I can see, to challenge the validity and constitutionality of the [electronic surveillance].” The court ordered the appellant to testify, and when he again refused, judged him in contempt. An appeal followed.
I
A grand jury witness who refuses to testify without “just cause” may be held in civil contempt, and confined until he agrees to testify, or, if he persists in refusing, for the life of the court proceeding or the term of the grand jury, but in no event longer than eighteen months. 18 U.S.C. § 1826(a). A showing that the questions put to the witness were based on illegal electronic surveillance constitutes “just cause” for his refusal to testify and precludes a finding of contempt. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); Grand Jury v. Gassiraro, 918 F.2d 1013, 1014 n. 1 (1st Cir.1990) (per curiam). Thus, although 18 U.S.C. § 2518(10)(a) “gives no standing to a prospective grand jury witness to be heard on a motion to suppress, § 2515 allows such a witness to assert, in defense of a contempt proceeding, the grounds enumerated in § 2518(10)(a)(i), (ii), and (iii).” In re Lochiatto, 497 F.2d 803, 806 (1st Cir.1974).
The witness’ right to assert these defenses, however, is not unqualified. In particular, the availability of defenses challenging the legality of the electronic surveillance does not imply “unconditional accessibility to all facts which might be rele-vant_” Id. at 807. The documents used to obtain an “intercept” order, the order itself, and the documents reflecting the results of the electronic surveillance, may contain “sensitive material” which, if disclosed, would threaten the safety of witnesses or otherwise impede the grand jury proceedings or the government’s investigation. Id.
In order to achieve the “triple objective” of minimizing delay, securing the government’s interest in secrecy, and protecting the witness’ right to assert his statutory defenses, in Lochiatto we established the following ground rules. First, if the government does not object “upon grounds of harm due to breach of secrecy,” the witness is entitled to inspect these limited materials: the authorized application of the Attorney General or his designate, 18 U.S.C. § 2516(1), the affidavits in support of the intercept order, the order itself, and an affidavit submitted by the government indicating the length of time the surveillance was conducted. Id. at 808. No evidence need be provided the defendant for the purpose of litigating the issues of truth of statements made by affiants or the “minimization” of federal officials in monitoring conversations. Id.
Second, if the government does object to production on secrecy grounds, the district court must determine whether the secret information can be “successfully deleted or summarized and access to the excerpted material granted.” Id. If the district court decides that “so much of the material is of a sensitive nature that revelation of any of it would prejudice the government, the court must then review the material in camera to determine the constitutional and statutory validity of the application and the court order based on the warrants, and compliance by the government with the court ordered time limits on surveillance.” Id. The district court has “wide discretion” in implementing these procedures.
In this case, the district court gave the appellant all the protection that Lochiatto requires. It first ruled that the appellant “probably did not miss too much from the redacted to the unredacted, except ... names and places.” We see no abuse of discretion in this conclusion, or in the district court’s decision not to “summarize” the redacted material for the appellant.
At that point, having decided that the secret information could be “successfully” deleted (that is, deleted without destroying the appellant’s ability effectively to prepare a defense), the court might, have concluded its discussion, leaving it to the appellant to frame his own challenges to the legality of the electronic surveillance. Instead, the district judge went on to perform the latter half of the Lochiatto analysis, saying that he had reviewed the unabridged documents in camera, and that
[t]he Attorney General’s authorization has been provided. The justification has been provided. The affidavit has been provided.... [The appellant] does not have any basis, that I can see, to challenge the validity and constitutionality of the process. The electronic surveillance was conducted pursuant to a court order and was authorized. That is not a basis for [the appellant] to refuse to testify. ■
We can find no fault with this conjunctive approach. It provided the appellant with an added layer of protection, assuring him that the district court had reviewed the deleted material with his statutory defenses in mind. Where, as here, the deletions were fairly extensive if not qualitatively significant, the court’s caution was laudable, and certainly not abusive of its wide discretion.
II
After the district court issued its contempt order, the appellant filed a notice of appeal, then moved for reconsideration in the district court. At the government’s urging, the district court denied the motion on the ground that the filing of the appeal had divested it of jurisdiction to reconsider the contempt order. The government now concedes that this position was mistaken. But, whether or not the district court should have addressed the motion on its merits, we need not remand now for it to do so: we have considered the issues raised in the motion and find them to be of no aid to the appellant’s cause.
The motion to reconsider contained two substantive challenges to the legality of the electronic surveillance. Both concerned the memoranda through which responsible officials of the Justice Department authorized federal prosecutors in the field to apply for an intercept order. The record contains three such memoranda, one authorizing the initial application and two authorizing successive applications for extensions of the order. Each memorandum went out under the name of Robert Mueller, the Assistant Attorney General in charge of the Criminal Division, and each contained a line for Mr. Mueller’s signature, but each memorandum was in fact signed by a different Deputy Assistant Attorney General in the Criminal Division: the first by Robert Bucknam, the second by Mark Richmond, the last by John Keeney.
Out of this clay the appellant molded his arguments. First, he contended that the judge who issued the intercept order and its extensions “was misled as to the official who authorized the application[s]” because the authorization memoranda “purported” to be from Assistant Attorney General Mueller, but were in fact signed by the various Deputy Assistants. Second, he noted that 18 U.S.C. § 2516(1) empowers only those Deputy Assistants who have been “specially designated by the Attorney General” to authorize applications for intercept orders. The Attorney General’s designation order under which these Deputy Assistants acted, No. 1348-89, named no names and instead designated by title “any Deputy Assistant Attorney General of the Criminal Division.” Because the order thus designated every Deputy Assistant in the Criminal Division, the appellant said, it failed to “specially designate” any particular individual.
We recently affirmed the validity of a structurally-identical authorization memorandum. In United States v. Citro, 938 F.2d 1431 (1st Cir.1991), the authorization memorandum, like the memoranda at issue here, carried a signature line for the Assistant Attorney General in charge of the Criminal Division, but actually was signed by one of his Deputy Assistants, who had been identified by title but not by name in the then-current Attorney General’s designation order. Id. at 1435.
In Citro, we rejected the appellant’s contention that designation by title rather than name was insufficient:
Section 2516(1) does not state that the Attorney General must designate officials by name. Identification by position is entirely consistent with the legislative history, which indicates that the purpose of the statute was to ensure that intrusive electronic eavesdropping be authorized only by a limited group of responsible federal officials. The statute requires that each of the officials be able to trace his or her explicit authority, by designation, to the Attorney General, an official who, by virtue of presidential appointment and Senate confirmation, is publicly responsible and subject to the political process. The statutory limitations allow the responsible persons to be identified and encourage consistency in the policy with which the electronic surveillance power is used. The Attorney General’s designation of individuals by title is sufficient to ensure the goals of accountability, identification and consistency. We see no reason to construe the statute to impose a technical requirement that the individuals be designated by name provided their identities are clearly ascertainable at any given time.
Id. at 1435-36 (citations omitted). See also United States v. Torres, 908 F.2d 1417, 1422 (9th Cir.1990); United States v. Pellicci, 504 F.2d 1106, 1107 (1st Cir.1974) (per curiam).
In Citro we did not say in so many words that an authorization memorandum is valid when it contains an empty signature line for the Assistant Attorney General but goes out over the signature of a Deputy Assistant. Such a ruling, however, was implicit in our general endorsement of the authorization memorandum. In the case at hand, at any rate, we find no fault in the arrangement of signatures on the authorization memoranda. The district judge who issued the intercept order and its extensions could not have been “misled” in any material sense by the presence of Assistant Attorney General Mueller’s printed name under the signature line. The signatures on the memoranda correctly reflected the identities of the persons who actually gave the authorizations (i.e., Deputy Assistants Bucknam, Richard and Kee-ney) — each of whom had the statutory power to do so by virtue of the Attorney General’s “special designation.” Cf. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) (failure to correctly identify person authorizing application does not render electronic surveillance illegal where person who actually authorized application had power to do so).
The judgment of contempt is affirmed.
. The district court issued the contempt order on July 14, 1992, and the appellant immediately filed his notice of appeal. This court docketed that appeal as No. 92-1859. On July 17, however, the appellant filed a motion for reconsideration in the district court. "[T]he filing of such a motion automatically cancels the effect of having earlier filed a notice of appeal." In re Public Service Co. of New Hampshire, 898 F.2d 1, 3 (1st Cir.1990). See also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (effect of Rule 59 motion on previously filed notice of appeal is that "appeal simply self-destructs"). Consequently, the appellant voluntarily dismissed appeal No. 92-1859 and filed this appeal. He also waived the requirement that recalcitrant witness appeals be decided within 30 days of the district court's contempt order.
. Under 18 U.S.C. § 2518(10)(a), an "aggrieved person” may challenge an intercepted wire or oral communication on the grounds that (i) the communication was unlawfully intercepted, (ii) the order of authorization or approval under which it was intercepted is insufficient on its face, and (iii) the interception was not made in conformity with the order of authorization or approval.
. The appellant’s brief focuses on the district court’s decision to withhold the government’s affidavits "concerning the existence of other sur-veillances.” It is true that when a witness challenges the legality of the government’s electronic surveillance, the government must "affirm or deny the occurrence of the alleged unlawful act," 18 U.S.C. § 3504, and include in its response “an explicit assurance that all agencies providing information relevant to the inquiry were canvassed.” In re Quinn, 525 F.2d 222, 226 (1st Cir.1975). The appellant contends that the district court should not have withheld the affidavits containing this assurance. We have examined the materials in question: they contain potentially-sensitive information about the nature and scope of the government's investigation, and we therefore see no abuse of discretion in the district court’s decision to examine them in camera. We find, moreover, that the 1 affidavits gave the necessary assurance and adequately showed that the grand jury questions put to the appellant were not derived from any other electronic surveillance source.
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_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.
EDLUND COMPANY, Inc., Appellant, v. UNITED STATES of America, Appellee.
No. 195, Docket 26570.
United States Court of Appeals Second Circuit.
Argued Feb. 7, 1961.
Decided March 14, 1961.
A. Pearley Feen, Burlington, Vt. (Paul D. Sheehey, R. Allan Paul, Burlington, Vt., on the brief), for appellant.
Arthur I. Gould, Washington, D. C. (Louis G. Whitcomb, U. S. Atty., Rut-land, Vt., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, Dept, of Justice, Washington, D. C., on the brief), for appellee.
Before LUMBARD, Chief Judge, MADDEN, Judge, United States Court of Claims, and WATERMAN, Circuit Judge.
Sitting by designation.
MADDEN, Judge.
The plaintiff has appealed from a decision of the United States District Court for the District of Vermont, denying recovery by the plaintiff of Federal income taxes collected from it for the years 1953 through 1956. The dispute is as to whether the plaintiff was entitled to a higher basis for the depreciation of its property during those years, and a consequently larger deduction for depreciation, than it was allowed by the tax authorities.
The plaintiff acquired the property in question from two persons, Walter Edlund and Willett Foster, and paid them for it by issuing to them the plaintiff’s stock. The ordinary rule is that if one acquires property by an exchange for it of other property, the value of the property given in exchange is the basis, for depreciation and other tax purposes, of the acquired property in the hands of the new owner. If this general rule were applicable to the plaintiff’s situation, it would be entitled to recover, since it claims that the basis for its property is the value of its stock which it issued in exchange for the property.
But the general rule is not applicable to the plaintiff’s situation. Walter Edlund and Foster owned the property in question as equal partners when they transferred it to the plaintiff for the plaintiff’s stock. And all of the plaintiff’s stock was issued to the two partners, in the exchange, each partner receiving one-half of the stock. Section 112(b) (5) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 112(b) (5) provides that if property is transferred to a corporation solely in exchange for the stock of the corporation and if, immediately after the exchange, the former owner of the property is in control of the corporation, and, if the property was transferred by two or more persons, their holdings of stock are in substantially the same proportions as their former interests in the property transferred, the exchange is a tax-free exchange and no taxable gain or loss arises out of it. Then section 113(a) (8), 26 U.S.C. (1952 ed.) § 113(a) (8) provides that, when the requirements of section 112(b) (5) are fulfilled, the basis of the property in the hands of the corporation shall be the basis which the property had in the hands of the transferors.
The statutes referred to above seem to be directly applicable to the plaintiff’s situation, and to preclude recovery by it. The plaintiff urges, however, that certain events which we will now relate make the cited statutes inapplicable to its case.
The property in question had, for some years before 1952, been owned by Oscar O. Edlund and Walter Edlund, as equal partners. In 1952 the sale of Oscar Edlund’s interest to Willett Foster was under discussion. Counsel for the partnership, on September 5, 1952, prepared a memorandum of advice as to how such a transfer could be made, how notes payable to Oscar Edlund for the deferred portion of the purchase price could be drawn, what the tax effects of the transaction might be, etc. The memorandum said that Oscar Edlund had indicated a willingness to sell his interest for $185,-000 and that “He will accept a note of the enterprise, either as a partnership or a corporation, for the sum of $82,500.” The memorandum later stated what Walter Edlund was willing to do “if a corporation is organized.” It further said, “A corporate entity is indicated in the event that this sale of the Oscar Edlund interest is arranged,” and described in some detail how the debt and capital structure of the corporation could be established.
The Edlunds and Foster made no agreement to follow the suggestions of the memorandum. On January 1, 1953, Oscar Edlund sold his interest in the partnership to Foster. On May 20, 1953 the plaintiff company was incorporated and within a few days thereafter Walter Edlund and Foster transferred the partnership property to the plaintiff and each received one-half of the plaintiff’s stock.
The plaintiff urges that the transfer of the property to the plaintiff corporation was not, realistically considered, a transfer from Walter Edlund and Foster, but was a transfer from Oscar Edlund and Walter Edlund, because its ultimate destination in the corporation was contemplated from the time that Oscar Edlund transferred his interest to Foster. If the transfer is treated as the plaintiff would have us treat it, it was not a tax-free exchange under section 112(b) (5) because Oscar Edlund, though in reality the transferor of one-half of the property to the corporation, got none of the stock of the corporation.
The only supporting evidence to which the plaintiff can point is the September 5, 1952 memorandum of counsel, referred to above. There is no evidence that when Oscar Edlund, on January 1, 1953, transferred his partnership interest to Foster, Foster and Walter Edlund obligated themselves to form a corporation and transfer the partnership assets to it. They continued for nearly five months to operate the business as a partnership, and so far as appears, could have continued to do so indefinitely. They were the owners of the property in question when they transferred it to the plaintiff corporation late in May. The requirements of section 112(b) (5) were satisfied.
This court, in the case of Wilgard Realty Co. v. Commissioner, 127 F.2d 514, certiorari denied 317 U.S. 655, 63 S.Ct. 52, 87 L.Ed. 527, discussed a question involving the interpretation of section 112(b) (5) which is very similar to the question now before us. In that case the former owner, Chamberlain, at the time he transferred land to the corporation and received the corporation’s stock in exchange, had the intent to give some three-fourths of the stock to various relatives, which he did immediately after he received the stock. The corporation .sold the land some years later. If the transaction by which it acquired the land was a tax-free transaction, the corporation was taxable on capital gains computed on Chamberlain’s basis for the land. This court held that the corporation was so taxable, because, at the time Chamberlain received the stock, he was not obligated to transfer the stock to others, but was free to change his mind about making gifts of the stock, so that he had, “immediately after the exchange,” the “control of the corporation,” as required by section 112(b) (5). The cases of Bassick v. Commissioner, 2 Cir., 85 F.2d 8; Hazeltine Corp. v. Commissioner, 3 Cir., 89 F.2d 513; and Heberlein Patent Corp. v. United States, 2 Cir., 105 F.2d 965, which are relied upon by the plaintiff in the instant case, were noticed and distinguished on the ground that in those cases there was a pre-existing obligation on the part of the receiver of the stock to transfer it to others. The instant case is different from Wilgard Realty in that it involves the question of the identity of the transferors to the corporation, rather than the question of the receipt of control by the transferee, but we think the principle enunciated in Wilgard Realty is applicable here. The immediate transferors, Walter Edlund and Willett Foster, owned the property free of any legal obligation to sell it to the plaintiff corporation. Had they chosen to keep it, or to convey it so some third party, they were free to do so. Having chosen to transfer it to the plaintiff, they are transferors within the meaning of section 112(b) (5).
The District Court denied recovery, citing the Wilgard case, supra. We think the opinion in that case makes further discussion unnecessary.
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_usc1sect
|
901
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
TOOBERT v. WOODS, Housing Expediter
No. 12030.
United States Court of Appeals Ninth Circuit.
May 7, 1949.
George W. Downing, Jr., Los Angeles, Cal., for appellant.
Ed Dupree, General Counsel, Office of Housing Expediter, Hugo V. Prucha, Asst. General Counsel, Benjamin I. Shulman, Special Lit. Attorney, Washington, D.C., for appellee.
Before DENMAN, Chief Judge, and STEPHENS and BONE, Circuit Judges.
DENMAN, Chief Judge.
This is an appeal from a judgment in a suit brought by appellee restraining appellant from collecting over-ceiling rents from tenants of five rented areas belonging to appellant in the Los Angeles Defense Rental Area and ordering a restitution of rents previously collected in violation of the Emergency Price Control Act and the Housing and Rent Act of 1947, 50 U.S.C.A. Appendix, §§ 901 et seq., 1881 et seq.
The district court found that appellant and one Hammond demanded and received the over-ceiling rents as “landlords” within rent regulations providing.
“ ‘Landlord’ includes an owner, lessor, sublessor, assignee or other person receiving or entitled to receive rent for the use or occupancy of any housing accommodations, or an agent of any of the foregoing.” 10 F.R. 13528, and 12 F.R. 4331.
Appellant concedes that he owned in fee these rented areas and that the rents collected on the five parcels by Hammond were over the ceiling provided by these acts. He contends that the tenants were not his tenants but of Hammond, who held the rented areas, first for a year under an oral contract of purchase of these five rented areas and two others, and second for the remaining period of about fourteen months under an oral lease; and that all the rents were collected by Hammond and none received by him and hence that he was not a “landlord” within the above regulations.
The imcontradicted evidence is that such an oral contract of sale was made between appellant and Hammond by which Hammond was to purchase all the seven areas, the title to be in the name of Hammond’s wife, who was then in Texas. An agreement in writing was drawn and awaiting Mrs. Hammond’s signature. The property was insured against fire for the benefit of Mrs. Hammond, appellant and Hammond— clear evidence of a bonafide agreement of sale with Mrs. Hammond to obtain the title. On the total purchase price of $17,-500, $150 a month was paid by Hammond to appellant throughout the year.
Hammond disputed a claim of appellant that, under the sales agreement, Hammond was responsible for certain insurance on the property. The agreement was rescinded and an oral lease to Hammond at $125 per month was substituted. Appellee ddes not contend that $125 per month is in excess of the prescribed maximum rentals for the seven rented parcels, appellee having proved only the maximum rentals on five of the parcels.
The district court held this oral agreement of sale to be void. Its reasoning seems to be that since there was no contract of sale the appellant must be deemed to have received the rent of the buildings, though both Hammond and appellant testified to the contrary and no one of the tenants testifying states that he paid appellant anything. Continuing the reasoning seems to be that since such relationship of appellant with the tenants so began, it continued through the period of the oral lease.
In holding the contract of sale was void under the California law, the district court erred. In California the oral agreement of sale, at all the pertinent times here, was valid between the parties. In O’Brien v. O’Brien, 197 Cal. 577, 586, 241 P. 861, 864, the Supreme Court of California states:
“It is the general rule, however, that a contract falling within the operation of the statute, but made in contravention thereof, is not invalid in the sense that it is void. It is merely voidable. The statute is said to relate to the remedy only and not to affect the validity of the oral contract. ‘Such a contract, if otherwise valid, remains so, and the sole effect of the statute is to render it unenforceable by one party against the will of the other who abandons or repudiates it.’ ”
And to the same effect, and explicitly holding that such a contract is not void, are: Ayoob, v. Ayoob, 74 Cal.App.2d 236, at 242, 168 P.2d 462; Thompson v. Schur-man, 65 Cal.App.2d 432, at 438, 150 P.2d 509; Taylor v. J. B. Hill Co., 67 Cal.App.2d 581, 154 P.2d 926.
In Thompson v. Schurman, supra, as here, the vendee had paid part of the consideration on an oral contract for the sale of land. The vendee sued to recover the part payment, though the vendor had not repudiated the oral contract. The contract was held valid and the vendee not entitled to recover the part payment of the purchase price, the court stating, 65 Cal.App.2d at pages 437 and 438, 150 P.2d at page 512:
“According to the great weight of authorities, including those found in the California jurisdiction, the vendee of real property under an oral contract which is within the statute of frauds may not recover partial payment of the purchase price which he has paid pursuant to the agreement, in the absence of fraud, while the vendor is ready, able and willing to fulfill the terms and conditions of the contract. Laffey v. Kaufman, 134 Cal. 391, 66 P. 471, 86 Am.St.Rep. 283; Walbridge v. Richards, 212 Cal. 408, 413, 298 P. 971; Kroger v. Baur, 46 Cal.App.2d 801, 117 P.2d 50; 12 Cal.Jur. 9Z2, sec. 92; 2 Williston on Contracts, Rev.Ed. 1562, sec. 538; 2 Restatement of the Law of Contracts, 618, sec. 355 [e]; 132 A.L.R. 1489, note; 27 Cal. Law Rev. 475. * * * ”
With the burden of proof on the appellee, the record shows no evidence that appellant received anything other than the part of the purchase price paid by Hammond on the contract of sale and Hammond’s rental on the succeeding lease. We hold that appellant did not bear the relationship of landlord to the tenants within the above rent regulations.
The judgment is reversed and the district court ordered to enter a judgment for appellant.
Under See. 206(b) of the Housing and Rent Act of 1947.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50? Answer with a number.
Answer:
|
songer_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
McNEALY v. JOHNSTON, Warden.
No. 8817.
Circuit Court of Appeals, Ninth Circuit.
Dec. 8, 1938.
James McNealy, in pro. per.
Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
This is an appeal from an order of the United States District Court for the North-era District of California denying appellant’s petition for a writ of habeas corpus.
On December 13, 1933, an indictment was returned in the United States District Court in and for the Southern District of Florida against appellant, and others, charging them with the commission of certain alleged offenses set up in three counts in the indictment.
Appellant pleaded guilty to the first and second counts of the indictment, and on December 20, 1933, was sentenced to a term of five years on count one and five years on •count two, said sentences to run consecutively, or for a total of ten years. Appellant commenced the serving of sentence on December 20, 1933.
It further appears that on September 14, 1933, an indictment containing five counts was returned in the United States District Court for the Southern District of Alabama, Southern Division, against appellant.
On January 15, 1934, in the United States District Court for the Southern District of Alabama, Northern Division, appellant pleaded guilty to all counts of the Alabama indictment, and on January 15, 1934, was sentenced in such court to a term •of three years, to commence “at the expiration of the sentence he is now serving for the Southern District of Florida”.
Appellant contends that the first count of th<“ Florida indictment is void in that it docs not charge an offense against the laws of the United States, and, therefore, that the five year sentence imposed thereon is invalid. Appellant further contends that the sentence imposed by the Alabama court is void for two reasons: first, because the plea to the indictment and sentence imposed thereon took place in the Northern Division of the United States District Court for the Southern District of Alabama, whereas the Offense was committed and the indictment was returned in the Southern Division of the United States District Court for the Southern District of Alabama; and, second, because the sentence of three years to commence after the expiration of another sentence lacks certainty and is ambiguous for other reasons.
Appellant concedes that the second count of the Florida indictment, and the sentence imposed thereunder, are valid. However, appellant contends that he has served this sentence, after having been given credit of eight days per month, or 480 days, for good conduct as provided for by 18 U.S.C.A. § 710, and a further credit of 32 days which he claims is allowable for “Industrial good time allowed and awarded for services performed in the Federal Prison Industries, Inc., at Alcatraz, Calif.” His contention is that the first count of the Florida indictment being invalid, his sentence on the second count started on December 20, 1933, the date of his original sentence and commitment. He further contends that the Alabama sentence is invalid, and that therefore he is being unlawfully detained in prison.
On January 9, 1938, appellant petitioned the Southern Division of the United States District Court, Northern District of California, for a writ of habeas corpus, which was denied on January 12, 1938, on the ground that it was prematurely brought, the court holding that the Alabama sentence was valid, and, therefore, that appellant must serve the three year sentence fixed for the crimes committed in Alabama before questioning his detention under the first count of the Florida indictment.
We are faced with this question: Must the Alabama sentence, if valid, be served before the appellant can question by habeas corpus the first count of the Florida indictment ?
The function of the writ of habeas corpus is to determine whether or not the prisoner is entitled to immediate release, and not to secure the judicial decision of a question which, even if determined in the prisoner’s favor, could not result in his injmediate release. McNally v. Hill, Warden, 293 U.S. 131, 136, 55 S.Ct. 24, 79 L.Ed. 238. We therefore conclude that if the sentence imposed by the Alabama Court is valid, the appellant must serve that sentence before he can raise the question of the validity of the first count of the Florida indictment.
It is next necessary to determine the validity of the sentence imposed by the Alabama court. Appellant first challenges the jurisdiction of the court to impose the sentence.
The offense charged in the Alabama indictment was committed and the indictment was returned in the Southern Division of the United States District Court for the Southern District of Alabama. The appellant pleaded guilty before the Northern Division of the United States District Court for the Southern District of Alabama, and the sentence now in question was imposed by that court.
Appellant contends that the Northern Division of the United States District Court for the Southern District of Alabama was without jurisdiction, and therefore that the sentence imposed by it is void. His first contention is that under Article 3, Section 2 of the United States Constitution, and under the Sixth Amendment, U.S.GA.Const. art. 3, § 2, and Amend. 6, the trial is required to be had where the crime shall have been committed.
It should be noted, however, that the constitutional provisions relate only to the “state and district” where the offense is committed. There is no constitutional prohibition against the- trial being had in a division of the district other than th,e division in which the offense was committed.
U.S.C.A., Title 28, Ch. 4, § 114 provides, in part: “* * * All prosecutions for crimes or offenses shall be had within the division of such districts where the same were committed, unless the court, or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district. * * *”
In Silverberg v. U. S., 5 Cir., 1925, 4 F.2d 908, certiorari denied, 1925, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168, the court pointed out that this was a matter merely of venue, purely personal to the defendant, and was waived by failure of the defendant to raise the question before the jury was impaneled, and by proceeding to trial on pleas of not guilty.
Any right that the appellant may have had to trial in the Southern Division of the United States District Court for the Southern District of Alabama were waived by his plea of guilty before the Northern Division of that District.
The sentence of the United States District Court for the Southern District of Alabama, Northern Division, reads, “It is, therefore, ordered and adjudged by the Court that James McNeeley alias James McNealy be, and he is sentenced to imprisonment in the. Atlanta Penitentiary for a period of Three (3) years, the serving of said sentence to begin at the expiration of the sentence he is now serving' for the Southern District of Florida.” .
Appellant contends that this sentence is void in that it cannot be ascertained therefrom when the sentence is to start.
Tt has often been held by the courts that when two or more sentences ■ are- imposed against the same person to imprisonment in the same institution, or the same type of institution, the presumption is that they are to be served concurrently rather than consecutively, unless the contrary clearly appears. Any reasonable doubt or ambiguity on that point is resolved in favor of the defendant. On the other hand, a judgment must be reasonably construed in accordance with the intent of the trial court, if the language discloses such intent clearly and without doubt or obscurity.
In United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309, the Supreme Court said [page 157], “Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded.” (Italics supplied.)
We think there is no serious uncertainty in the language of the trial court, “the serving of said sentence to begin at the expiration of the sentence he is now serving for the Southern District of Florida”. We therefore hold that the sentence imposed by the Alabama court is valid.
If the first count of the Florida indictment is valid, then the phrase of the Alabama court “at the expiration of the sentence he is now serving” may apply only to it, and it may be that the Alabama sentence and the sentence under the second count of the Florida indictment are running concurrently. (We do not mean to intimate that we have come to such a conclusion.) If the sentence under the first count of the Florida indictment is invalid, then the appellant is deemed to have been confined on the sentence of the second count [Blitz v. United States, 153 U. S. 308, 318, 14 S.Ct. 924, 38 L.Ed. 725], and the above phrase of the Alabama court applies to it. Under any construction, the least possible sentence which the defendant must serve is five years under the second Florida count, and three years thereafter under the Alabama sentence, or a total of eight years. Assuming that the appellant is entitled to his good conduct credit of eight days per month as provided for in 18 U.S.C.A. § 710, and the additional 32 day credit to which he claims he is entitled, a very simple mathematical computation would demonstrate that his term of sentence has not yet expired.
The order of the trial court is 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_decisiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. LINE MATERIAL CO. et al.
No. 8.
Argued April 29, 1947.
Reargued November 12-13, 1947.
Decided March 8, 1948.
Assistant Attorney General Berge argued the cause on the original argument for the United States. With him on the brief were George T. Washington, then Acting Solicitor General, Charles H. Weston, Robert G. Seaks, Bartholomew A. Diggins and Leonard J. Emmerglick.
Frederick Bernays Wiener argued the cause on the re-argument for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Sonnett and Robert G. Beaks.
John Lord O’Brian and Albert R. Connelly argued the cause for appellees. With them on the briefs were Nester S. Foley, Gerhard A. Gesell, Louis Quarles, Maxwell H. Herriott, Clark J. A. Hazelwood, Charles F. Meroni, Needham A. Graham, Jr., W. F. Sonnekalb, Jr., Alexander C. Neave, Harry R. Puch, Jr., Wilder Lucas, Wilber Owen, John A. Dienner, Edward C. Grelle, George B. Turner and John J. O’Connell.
Mr. Justice Reed
delivered the opinion of the Court.
The United States sought an injunction under §§ 1 and 4 of the Sherman Act in the District Court against continuance of violations of that Act by an allegedly unlawful combination or conspiracy between appellees, through contracts, to restrain interstate trade in certain patented electrical devices. The restraint alleged arose from a cross-license arrangement between the patent owners, Line Material' Company and Southern States Equipment Corporation, to fix the sale price of the devices, to which arrangement the other appellees, licensees to make and vend, adhered by supplemental contracts.
The District Court, 64 F. Supp. 970, dismissed the complaint as to all defendants upon its conclusion that the rule of United States v. General Electric Co., 272 U. S. 476, was controlling. That case approved as lawful a pat-entee’s license to make and vend which required the licensee in its sales of the patented devices to conform to the licensor’s sale price schedule. Appeal was taken directly to this Court, 32 Stat. 823, and probable jurisdiction noted here on October 21, 1946. We have jurisdiction.
I. The Facts.
The challenged arrangements center around three product patents, which are useful in protecting an electric circuit from the dangers incident to a short circuit or other overload. Two of them are dropout fuse cutouts and the third is a housing suitable for use with any cutout. Dropout fuse cutouts may be used without any housing. The District Court found that 40.77% of all cutouts manufactured and sold by these defendants were produced under these patents. This was substantially all the dropout fuse cutouts made in the United States. There are competitive devices that perform the same functions manufactured by appellees and others under different patents than those here involved.
The dominant patent, No. 2,150,102, in the field of dropout fuse cutouts with double jointed hinge construction was issued March 7, 1939, to the Southern States Equipment Corporation, assignee, on an application of George N. Lemmon. This patent reads upon a patent No. 2,176,227, reissued December 21, 1943, Re. 22,412, issued October 17, 1939 to Line Material Company, as-signee, on an application by Schultz and Steinmayer. The housing patent No. 1,781,876, reissued March 31, 1931, as Re. 18,020, and again February 5, 1935, as Re. 19,449, was issued November 18, 1930 to Line, assignee, on an application by W. D. Kyle. The Kyle patent covers a wet-process porcelain box with great dielectric strength, which may be economically constructed and has been commercially successful. We give no weight to the presence of the Kyle patent in the licenses.
The applications for the Lemmon and Schultz patents were pending simultaneously. They were declared in interference and a contest resulted. The decision of the Patent Office awarding dominant claims to Southern and subservient claims to Line on the Lemmon and the Schultz applications made it impossible for any manufacturer to use both patents when later issued without some cross-licensing arrangement. Cf. Temco Electric Motor Co. v. Apco Mfg. Co., 275 U. S. 319, 328. Only when both patents could be lawfully used by a single maker could the public or the patentees obtain the full benefit of the efficiency and economy of the inventions. Negotiations were started by Line which eventuated in the challenged arrangements.
The first definitive document was a bilateral, royalty-free, cross-license agreement of May 23, 1938, between Southern and Line after the Patent Office award but before the patents issued. This, so far as here pertinent, was a license to Southern by Line to make and vend the prospective Schultz patented apparatus with the exclusive right to grant licenses or sublicenses to others. Line also granted Southern the right to make and vend but not to sublicense the Kyle patent. Southern licensed Line to make and vend but not to sublicense the prospective Lemmon patent for defined equipment which included the Schultz apparatus. Sublicense royalties and expenses were to be divided between Line and Southern. Although a memorandum of agreement of January 12, 1938, between the parties had no such requirement, Line agreed to sell equipment covered by the Southern patent at prices not less than those fixed by Southern. Southern made the same agreement for equipment covered solely by the Line patent. No requirement for price limitation upon sales by other manufacturers under license was included.
Six of the other manufacturers here involved were advised by Line by letter, dated June 13,1938, that Southern had authority to grant licenses under the Schultz prospective patent. On October 3, 1938, Kearney took from Southern a license to practice the Lemmon and Schultz patents. The license had a price, term and condition of sale clause, governed by Southern’s prices, which bound Kearney to maintain the prices on its sales of devices covered by the patents. On October 7, 1938, the five other manufacturers mentioned above were offered by Southern the same contract as the standard licensor’s agreement. The Kearney contract was discussed at Chicago in October, 1938, by all of the above manufacturers except Railway. Pacific also participated. It never was enforced. The first patent involved in this case did not issue until March, 1939. Those manufacturers who were making double jointed open and enclosed dropout cutouts wanted to and did explore cooperatively (F. F. 15) the validity of the patents. They failed to find a satisfactory basis for attack. They were faced with infringement suits. Other reasons developed for the refusal of the six manufacturers to accept the Kearney form contracts (F. F. 16 & 17) unnecessary to detail here. One reason was that the prospective sublicensees preferred Line to Southern as licensor because of the fact that Line, as owner and manufacturer, would license the Kyle patent. New arrangements were proposed for the licensees. After mutual discussion between the licensees and patentees, these new agreements were submitted. A finding to which no objection is made states:
“On October 24, 1939, General Electric, Westinghouse, Kearney, Matthews, Schweitzer and Conrad, and Railway met with Line in Chicago and jointly discussed drafts of the proposed license agreements under the Lemmon, Schultz, and Kyle patents. Thereafter, identical sets of revised licenses were sent by Line to General Electric, Westinghouse, Matthews, Schweitzer and Conrad, and the attorneys for Railway and Kearney.”
A form for a proposed licensing agreement that contained the essential elements of the price provision ultimately included in the licenses had been circulated among prospective licensees by Line by letters under date of October 6,1939.
To meet the various objections of the future licensees, the agreement of May 23, 1938, between Southern and Line was revised as of January 12, 1940. Except for the substitution of Line for Southern as licensor of other manufacturers, it follows generally the form of the earlier agreement. There were royalty-free cross-licenses of the Schultz and Lemmon patents substantially as before. Line was given the exclusive right to grant sublicenses to others for Lemmon. Southern retained the privilege, royalty free, of making and vending the Kyle patent, also. Southern bound itself to maintain prices, so long as Line required other licensees to do so. Even if it be assumed that the proper interpretation of the Line-Southern agreement permitted Southern to manufacture under its own Lemmon patent without price control, the practical result is that Southern does have its price for its products fixed because the only commercially successful fabrication is under a combination of the Lemmon and Schultz patents. Findings of Fact 7 and 10.
The price maintenance feature was reflected in all the licenses to make and vend granted by Line, under the Line-Southern contract, to the other appellees. There were variations in the price provisions that are not significant for the issues of this case. A fair example appears below. The execution of these sublicenses by the other appellees, except Johnson and Royal, followed within a year. Licenses were executed by the two on June 15, 1943, and March 24, 1944, respectively. After August 1, 1940, since a number of the appellees had executed the license contracts, two consultations of the licensees and the patentees were held to classify the products of the various licensees in comparison with the licensor’s devices. The trial judge found that prices were not’ discussed. These were fixed by Line without discussion with or advice from any other appellee. There can be no doubt, however, that each licensee knew of the proposed price provisions in the licenses of other licensees from the circulation of proposed form of license on October 6, 1939, subsequent consultations among the licensees and an escrow agreement, fulfilled July 11, 1940. That agreement was entered into after General Electric took its license and required for fulfillment the acceptance of identical licenses by Matthews, Kearney and Railway. The licenses that were the subject of the escrow contained the price provisions of General Electric’s license. This awareness by each signer of the price provisions in prior contracts is conceded by appellees’ brief. A price schedule became effective January 18, 1941. Thereafter, all the appellees tried to maintain prices. Where there was accidental variation, Line wrote the licensee calling attention to the failure.
The licenses were the result of arm’s length bargaining in each instance. Price limitation was actively opposed in toto or restriction of its scope sought by several of the licensees, including General Electric, the largest producer of the patented appliances. A number tried energetically to find substitutes for the devices. All the licensees, however, were forced to accept the terms or cease manufacture. By accepting they secured release from claims for past infringement through a provision to that effect in the license. The patentees through the licenses sought system in their royalty collections and pecuniary reward for their patent monopoly. Undoubtedly one purpose of the arrangements was to make possible the use by each manufacturer of the Lemmon and Schultz patents. These patents in separate hands produced a deadlock. Lem-mon by his basic patent “blocked” Schultz’s improvement. Cross-licenses furnished appellees a solution.
On consideration of the agreements and the circumstances surrounding their negotiation and execution, the District Court found that the arrangements, as a whole, were made in good faith, to make possible the manufacture by all appellees of the patented devices, to gain a legitimate return to the patentees on the inventions; and that, apart from the written agreements, there was no undertaking between the appellees or any of them to fix prices. Being convinced, as we indicated at the first of this opinion, that the General Electric case controlled and permitted such price arrangements as are disclosed in the contracts, the District Court dismissed the complaint. The Government attacks the rationale of the General Electric case and urges that it be overruled, limited and explained or differentiated.
II. The General Electric Case.
That case was decided in 1926 by a unanimous Court, Chief Justice Taft writing. It involved a bill in equity to enjoin further violations of the Sherman Act. While violations of the Act by agreements fixing the resale price of patented articles (incandescent light bulbs) sold to dealers also were alleged in the bill, so far as here material the pertinent alleged violation was an agreement between General Electric and Westinghouse Company through which Westinghouse was licensed to manufacture lamps under a number of General Electric’s patents, including a patent on the use of tungsten filament in the bulb, on condition that it should sell them at prices fixed by the licensor. On considering an objection to the fixing of prices on bulbs with a tungsten filament, the price agreement was upheld as a valid exercise of patent rights by the licensor.
Speaking of the arrangement, this Court said: “If the patentee . . . licenses the selling of the articles [by a licensee to make], may he limit the selling by limiting the method of sale and the price? We think he may do so, provided the conditions of sale are normally and reasonably adapted to secure pecuniary reward for the pat-entee’s monopoly.” P. 490. This proviso must be read as directed at agreements between a patentee and a licensee to make and vend. The original context of the words just quoted makes clear that they carry no implication of approval of all a patentee’s contracts which tend to increase earnings on patents. The opinion recognizes the fixed rule that a sale of the patented article puts control of the purchaser’s resale price beyond the power of the patentee. P. 489. Compare United States v. Univis Lens Co., 316 U. S. 241. Nor can anything be found in the General Electric case which will serve as a basis to argue otherwise than that the precise terms of the grant define the limits of a patentee’s monopoly and the area in which the patentee is freed from competition of price, service, quality or otherwise. Compare Mercoid Corporation v. Mid-Continent Inv. Co., 320 U. S. 661, 665, 666; United States v. Masonite Corp., 316 U. S. 265, 277-78, 280; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510.
General Electric is a case that has provoked criticism and approval. It had only bare recognition in Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 456. That case emphasized the rule against the extension of the patent monopoly, p. 456, to resale prices or to avoid competition among buyers. Pages 457-58. We found it unnecessary to reconsider the rule in United States v. Masonite Corp., 316 U. S. 265, 277, although the arrangement there was for sale of patented articles at fixed prices by dealers whom the patentee claimed were del credere agents. As we concluded the patent privilege was exhausted by a transfer of the articles to certain agents who were part of the sales organization of competitors, discussion of the price-fixing limitation was not required. In Katzinger Co. v. Chicago Mfg. Co., 329 U. S. 394, 398, where a suit was brought to recover royalties on a license with price limitations, this Court refused to examine the General Electric rule because of the claimed illegality of the Katz-inger patent. If the patent were invalid, the price-fixing agreement would be unlawful. We affirmed the action of the Circuit Court of Appeals in remanding the case to the District Court to determine the validity of the patent. The General Electric case was cited with approval in Carbice Corp. v. American Patents Development Corp., 283 U. S. 27, 31. Other courts have explained or distinguished the General Electric rule. As a reason for asking this Court to reexamine the rule of the General Electric case, the Government states that price maintenance under patents through various types of agreements is involved in certain pending cases. Furthermore, the point is made that there is such a “host of difficult and unsettled questions” arising from the General Electric holding that the simplest solution is to overrule the precedent on the power of a patentee to establish sale prices of a licensee to make and vend a patented article.
Such a liquidation of the doctrine of a patentee’s power to determine a licensee’s sale price of a patented article would solve problems arising from its adoption. Since 1902, however, when Bement v. National Harrow Co., 186 U. S. 70, was decided, a patentee has been able to control his licensee’s sale price within the limits of the patent monopoly. Litigation that the rule has engendered proves that business arrangements have been repeatedly, even though hesitatingly, made in reliance upon the contractors’ interpretation of its meaning. Ap-pellees urge that Congress has taken no steps to modify the rule. Such legislative attitude is to be weighed with the counterbalancing fact that the rule of the General Electric case grew out of a judicial determination. The writer accepts the rule of the General Electric case as interpreted by the third subdivision of this opinion. As a majority of the Court does not agree with that position, the case cannot be reaffirmed on that basis. Neither is there a majority to overrule General Electric. In these circumstances, we must proceed to determine the issues on the assumption that General Electric continues as a precedent. Furthermore, we do not think it wise to undertake to explain, further than the facts of this case require, our views as to the applicability of patent price limitation in the various situations listed by the Government. On that assumption where a conspiracy to restrain trade or an effort to monopolize is not involved, a patentee may license another to make and vend the patented device with a provision that the licensee’s sale price shall be fixed by the patentee. The assumption is stated in this way so as to leave aside the many variables of the General Electric rule that may arise. For example, there may be an aggregation of patents to obtain dominance in a patent field, broad or narrow, or a patent may be used as a peg upon which to attach contracts with former or prospective competitors, touching business relations other than the making and vending of patented devices. Compare United States v. United States Gypsum Co., post, p. 364, decided today; United States v. Masonite Corp., 316 U. S. 265.
It may be helpful to specify certain points that either are not contested or are not decided in this case. The agreements, if illegal, restrain interstate commerce contrary to the Sherman Act. No issue of monopoly is involved. (F. F. 31.) Cf. American Tobacco Co. v. United States, 328 U. S. 781, 788. That is to say, the complaint charges restraint of trade under § 1 and does not charge “monopoly” under § 2 of the Sherman Act, so that we need not deal with the problems of consolidation, merger, purchase of competitors or size of business as tending toward attaining monopoly. See United States v. United Shoe Machinery Co., 247 U. S. 32, 44-55; United States v. Aluminum Co. of America, 148 F. 2d 416, 427-31; United States v. American Tobacco Co., 221 U. S. 106, 181-83; United States v. United States Steel Corp., 251 U. S. 417, 451. We are not dealing with a charge of monopoly or restraint because of the aggregation of patents, by pooling or purchase, by an owner or owners, in a single industry or field. See United States v. United Shoe Machinery Co., 247 U. S. 32. Within the limits of the patentee’s rights under his patent, monopoly of the process or product by him is authorized by the patent statutes. It is stipulated by the United States that the validity of the patents is not in issue. With these points laid aside, we proceed to the issues presented by this record.
III. The Determination of the Issue.
Under the above-mentioned assumption as to General Electric, the ultimate question for our decision on this appeal may be stated, succinctly and abstractly, to be as to whether in the light of the prohibition of § 1 of the Sherman Act, note 1, supra, two or more patentees in the same patent field may legally combine their valid patent monopolies to secure mutual benefits for themselves through contractual agreements, between themselves and other licensees, for control of the sale price of the patented devices.
The appellees urge that the findings of the District Court, quoted in note 13 supra, stand as barriers to a con-elusion here that § 1 of the Sherman Act has been violated by the licenses. Since there was material evidence to support the District Court’s finding of the evidentiary facts and the Court necessarily weighed the credibility of the witnesses and the probative value of their testimony to establish appellees’ contentions, appellees insist that the inferences or conclusions as to violations of the Sherman Act, drawn by the District Court, must be accepted by us. As to the evidentiary facts heretofore stated, there is no dispute. From them the District Court made findings of fact Nos. 32 to 36, inclusive, here-inbefore set out in note 13. Even though we accept, as we do, these findings on preliminary facts as correct, the last sentence in findings 32 and 34 crumbles their asserted bar to an examination by us as to whether the agreements are violative of the Sherman Act. Those sentences are to the effect that there was an agreement to fix prices between all parties in the language of the contracts as set out in notes 8 and 9 supra. If the patent rights do not empower the patentees to fix sale prices for others, the agreements do violate the Act. The previous summary in this opinion of the agreements which compose these arrangements demonstrates that the agreements were intended to and did fix prices on the patented devices. Compare Interstate Circuit v. United States, 306 U. S. 208, 226. While Line’s sublicenses to others than General Electric, note 9, gave to Line the power which it exercised to fix prices only for devices embodying its own Schultz patent, the sublicense agreements licensed the use of the dominant Lemmon patent. As the Schultz patent could not be practiced without the Lemmon, the result of the agreement between Southern and Line for Line’s sublicensing of the Lemmon patent was to combine in Line’s hands the authority to fix the prices of the commercially successful devices embodying both the Schultz and Lemmon patents. Thus, though the sublicenses in terms followed the pattern of General Electric in fixing prices only on Line’s own patents, the additional right given to Line by the license agreement of January 12, 1940, between Southern and Line, to be the exclusive licensor of the dominant Lemmon patent, made its price fixing of its own Schultz devices effective over devices embodying also the necessary Lemmon patent. See note 9. By the patentees’ agreement the dominant Lemmon and the subservient Schultz patents were combined to fix prices. In the absence of patent or other statutory authorization, a contract to fix or maintain prices in interstate commerce has long been recognized as illegal per se under the Sherman Act. This is true whether the fixed price is reasonable or unreasonable. It is also true whether it is a price agreement between producers for sale or between producer and distributor for resale.
It is equally well settled that the possession of a valid patent or patents does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent monopoly. By aggregating patents in one control, the holder of the patents cannot escape the prohibitions of the Sherman Act. See Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20; United States v. United States Cypsum Co., post, p. 364. During its term, a valid patent excludes all except its owner from the use of the protected process or product. United States v. United Shoe Machinery Co., 247 U. S. 32, 58; Special Equipment Co. v. Coe, 324 U. S. 370, 378. This monopoly may be enjoyed exclusively by the patentee or he may assign the patent “or any interest therein” to others. Rev. Stat. § 4898, as amended 55 Stat. 634. As we have pointed out, a patentee may license others to make and vend his invention and collect a royalty therefor. Thus we have a statutory monopoly by the patent and by the Sherman Act a prohibition, not only of monopoly or attempt to monopolize, but of every agreement in restraint of trade. Public policy has condemned monopolies for centuries. The Case of Monopolies, Darcy v. Allein, 11 Co. Rep. 84-b. See United States v. Aluminum Co. of America, 148 F. 2d 416, 428-49. See Employment Act of 1946, § 2, 60 Stat. 23. Our Constitution allows patents. Art. I, § 8, cl. 8. The progress of our economy has often been said to owe much to the stimulus to invention given by the rewards allowed by patent legislation. The Sherman Act was enacted to prevent restraints of commerce but has been interpreted as recognizing that patent grants were an exception. Bement v. National Harrow Co., supra, 92, 21 Cong. Rec. 2457. Public service organizations, governmental and private, aside, our economy is built largely upon competition in quality and prices. Associated Press v. United States, 326 U. S 1, 12-14. Validation by Congress of agreements to exclude competition is unusual. Monopoly is a protean threat to fair prices. It is a tantalizing objective to any business compelled to meet the efforts of competitors to supply the market. Perhaps no single fact manifests the power and will to monopolize more than price control of the article monopolized. There can be no clearer evidence of restraint of trade. Whatever may be the evil social effect of cutthroat competition on producers and consumers through the lowering of labor standards and the quality of the produce and the obliteration of the marginal to the benefit of the surviving and low-cost producers, the advantages of competition in opening rewards to management, in encouraging initiative, in giving labor in each industry an opportunity to choose employment conditions and consumers a selection of product and price, have been considered to overbalance the disadvantages. The strength of size alone, the disappearance of small business are ever-present dangers in competition. Despite possible advantages to a stable economy from efficient cartels with firm or fixed prices for products, it is crystal clear from the legislative history and accepted judicial interpretations of the Sherman Act that competition on prices is the rule of congressional purpose and that, where exceptions are made, Congress should make them. The monopoly granted by the patent laws is a statutory exception to this freedom for competition and consistently has been construed as limited to the patent grant. Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 452, 455; United States v. Univis Lens Co., 316 U. S. 241; Hartford-Empire Co. v. United States, 323 U. S. 386. It is not the monopoly of the patent that is invalid. It is the improper use of that monopoly.
The development of patents by separate corporations or by cooperating units of an industry through an organized research group is a well known phenomenon. However far advanced over the lone inventor’s experimentation this method of seeking improvement in the practices of the arts and sciences may be, there can be no objection, on the score of illegality, either to the mere size of such a group or the thoroughness of its research. It may be true, as Carlyle said, that “Genius is an infinite capacity for taking pains.” Certainly the doctrine that control of prices, outside the limits of a patent monopoly, violates the Sherman Act is as well understood by Congress as by all other interested parties.
We are thus called upon to make an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act. That adjustment has already reached the point, as the precedents now stand, that a patentee may validly license a competitor to make and vend with a price limitation under the General Electric case and that the grant of patent rights is the limit of freedom from competition under the cases first cited at note 22.
With the postulates in mind that price limitations on patented devices beyond the limits of a patent monopoly violate the Sherman Act and that patent grants are to be construed strictly, the question of the legal effect of the price limitations in these agreements may be readily answered. Nothing in the patent statute specifically gives a right to fix the price at which a licensee may vend the patented article. 35 U. S. C. §§ 40, 47. While the General Electric case holds that a patentee may, under certain conditions, lawfully control the price the licensee of his several patents may charge for the patented device, no case of this Court has construed the patent and anti-monopoly statutes to permit separate owners of separate patents by cross-licenses or other arrangements to fix the prices to be charged by them and their licensees for their respective products. Where two or more patentees with competitive, non-infringing patents combine them and fix prices on all devices produced under any of the patents, competition is impeded to a greater degree than-where a single patentee fixes prices for his licensees. The struggle for profit is less acute. Even when, as here, the devices are not commercially competitive because the subservient patent cannot be practiced without consent of the dominant, the statement holds good. The stimulus to seek competitive inventions is reduced by the mutually advantageous price-fixing arrangement. Compare, as to acts by a single entity and those done in combination with others, Swift & Co. v. United States, 196 U. S. 375, 396; United States v. Reading Co., 226 U. S. 324, 357; Eastern States Lumber Dealers’ Assn. v. United States, 234 U. S. 600; Binderup v. Pathé Exchange, 263 U. S. 291. The merging of the benefits of price fixing under the patents restrains trade in violation of the Sherman Act in the same way as would the fixing of prices between producers of nonpatentable goods.
If the objection is made that a price agreement between a patentee and a licensee equally restrains trade, the answer is not that there is no restraint in such an arrangement but, when the validity of the General Electric case is assumed, that reasonable restraint accords with the patent monopoly granted by the patent law. Where a patentee undertakes to exploit his patent by price fixing through agreements with anyone,' he must give consideration to the limitations of the Sherman Act on such action. The patent statutes give an exclusive right to the patentee to make, use and vend and to assign any interest in this monopoly to others. The General Electric case construes that as giving a right to a patentee to license another to make and vend at a fixed price. There is no suggestion in the patent statutes of authority to combine with other patent owners to fix prices on articles covered by the respective patents. As the Sherman Act prohibits agreements to fix prices, any arrangement between patentees runs afoul of that prohibition and is outside the patent monopoly.
We turn now to the situation here presented of an agreement where one of the patentees is authorized to fix prices under the patents. The argument of respondents is that if a patentee may contract with his licensee to fix prices, it is logical to permit any number of patentees to combine their patents and authorize one patentee to fix prices for any number of licensees. In this present agreement Southern and Line have entered into an arrangement by which Line is authorized to and has fixed prices for devices produced under the Lemmon and Schultz patents. It seems to us, however, that such argument fails to take into account the cumulative effect of such multiple agreements in establishing an intention to restrain. The obvious purpose and effect of the agreement was to enable Line to fix prices for the patented devices. Even where the agreements to fix prices are limited to a small number of patentees, we are of the opinion that it crosses the barrier erected by the Sherman Act against restraint of trade though the restraint is by patentees and their licensees.
As early as 1912, in Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, this Court unanimously condemned price limitation under pooled patent licenses. As the arrangement was coupled with an agreement for limitation on jobbers’ resale prices, the case may be said to be indecisive on patent license agreements for price control of a product without the jobber’s resale provision. No such distinction appears in the opinion. This Court has not departed from that condemnation of price fixing. Even in Standard Oil Co. v. United States, 283 U. S. 163, where an arrangement by which the patentees pooled their oil cracking patents and divided among themselves royalties from licensees fixed by the pooling contracts was upheld, the theory was reiterated that a price limitation for the product was unlawful per se. Pp. 170, 173, 175. Of course, if a purpose or plan to monopolize or restrain trade is found, the arrangement is unlawful. P. 174. The Government’s contention in that case that the limitation on royalties in itself violated the Sherman Act by fixing an element in the price was dismissed because the Court was of the view that controlled royalties were effective as price regulators only when the pat-entees dominated the industry. P. 174. This domination was thought by this Court not to have been proven.
When a plan for the patentee to fix the sale prices of patented synthetic hardboard on sales made through formerly competing manufacturers and distributors, designated as del credere agents, came before this Court on allegations that the plan was in violation of the Sherman
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
CLINTON v. JONES
No. 95-1853.
Argued January 13, 1997
Decided May 27, 1997
Robert S. Bennett argued the cause for petitioner. With him on the briefs were Carl S. Rauh, Alan Kriegel, Amy R. Sabrin, and David A. Strauss.
Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.
Gilbert K. Davis argued the cause for respondent. With him on the brief was Joseph Cammarata.
John C. Jeffries, Jr., and Pamela S. Karlan filed a brief for Law Professors as amicus curiae urging reversal.
Christopher A. Hansen and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
Briefs of amicus curiae were filed for the Coalition of American Veterans by Laurence A. Elgin; and for Law Professors by Ronald D. Rotunda, Albert E. Jenner, Jr., Stephen B. Burbank, William Cohen, Geoffrey P. Miller, Robert F. Nagel, and Richard Parker.
Justice Stevens
delivered the opinion of the Court.
This case raises a constitutional and a prudential question concerning the Office of the President of the United States. Respondent, a private citizen, seeks to recover damages from the current occupant of that office based on actions allegedly taken before his term began. The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting the President’s submissions, we conclude that they must be rejected.
I
Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and reelected in 1996. His term of office expires on January 20, 2001. In 1991 he was the Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and was an employee of the Arkansas Industrial Development Commission.
On May 6, 1994, she commenced this action in the United States District Court for the Eastern District of Arkansas by filing a complaint naming petitioner and Danny Ferguson, a former Arkansas State Police officer, as defendants. The complaint alleges two federal claims, and two state-law claims over which the federal court has jurisdiction because of the diverse citizenship of the parties. As the case comes to us, we are required to assume the truth of the detailed— but as yet untested — factual allegations in the complaint.
Those allegations principally describe events that are said to have occurred on the afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent — working as a state employee — staffed the registration desk. She alleges that Ferguson persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made “abhorrent” sexual advances that she vehemently rejected. She further claims that her superiors at work subsequently dealt with her in a hostile and rude manner, and changed her duties to punish her for rejecting those advances. Finally, she alleges that after petitioner was elected President, Ferguson defamed her by making a statement to a reporter that implied she had accepted petitioner’s alleged overtures, and that various persons authorized to speak for the President publicly branded her a liar by denying that the incident had occurred.
Respondent seeks actual damages of $75,000 and punitive damages of $100,000. Her complaint contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. § 1979, 42 U. S. C. § 1983. The second charges that petitioner and Ferguson engaged in a conspiracy to violate her federal rights, also actionable under federal law. See Rev. Stat. § 1980, 42 U. S. C. § 1985. The third is a state common-law claim for intentional infliction of emotional distress, grounded primarily on the incident at the hotel. The fourth count, also based on state law, is for defamation, embracing both the comments allegedly made to the press by Ferguson and the statements of petitioner’s agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we assume, without deciding, that each of the four counts states a cause of action as a matter of law. With the exception of the last charge, which arguably may involve conduct within the outer perimeter of the President’s official responsibilities, it is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.
II
In response to the complaint, petitioner promptly advised the District Court that he intended to file a motion to dismiss on grounds of Presidential immunity, and requested the court to defer all other pleadings and motions until after the immunity issue was resolved. Relying on our cases holding that immunity questions should be decided at the earliest possible stage of the litigation, 858 F. Supp. 902, 905 (ED Ark. 1994), our recognition of the “‘singular importance of the President’s duties,’ ” id., at 904 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 751 (1982)), and the fact that the question did not require any analysis of the allegations of the complaint, 858 F. Supp., at 905, the court granted the request. Petitioner thereupon filed a motion “to dismiss . . . without prejudice and to toll any statutes of limitation [that may be applicable] until he is no longer President, at which time the plaintiff may refile the instant suit.” Record, Doc. No. 17. Extensive submissions were made to the District Court by the parties and the Department of Justice.
The District Judge denied the motion to dismiss on immunity grounds and ruled that discovery in the case could go forward, but ordered any trial stayed until the end of petitioner’s Presidency. 869 F. Supp. 690 (ED Ark. 1994). Although she recognized that a “thin majority” in Nixon v. Fitzgerald, 457 U. S. 731 (1982), had held that “the President has absolute immunity from civil damage actions arising out of the execution of official duties of office,” she was not convinced that “a President has absolute immunity from civil causes of action arising prior to assuming the office.” She was, however, persuaded by some of the reasoning in our opinion in Fitzgerald that deferring the trial if one were required would be appropriate. 869 F. Supp., at 699-700. Relying in part on the fact that respondent had failed to bring her complaint until two days before the 3-year period of limitations expired, she concluded that the public interest in avoiding litigation that might hamper the President in conducting the duties of his office outweighed any demonstrated need for an immediate trial. Id., at 698-699.
Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the motion to dismiss, but because it regarded the order postponing the trial until the President leaves office as the “functional equivalent” of a grant of temporary immunity, it reversed that order. 72 F. 3d 1354, 1361, n. 9, 1363 (CA8 1996). Writing for the majority, Judge Bowman explained that “the President, like all other government officials, is subject to the same laws that apply to all other members of our society,” id., at 1358, that he could find no “case in which any public official ever has been granted any immunity from suit for his unofficial acts,” ibid., and that the rationale for official immunity “is inappo-site where only personal, private conduct by a President is at issue,” id., at 1360. The majority specifically rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch through scheduling orders, potential contempt citations, and sanctions would violate separation-of-powers principles. Judge Bowman suggested that “judicial case management sensitive to the burdens of the presidency and the demands of the President’s schedule” would avoid the perceived danger. Id., at 1361.
In dissent, Judge Ross submitted that even though the holding in Fitzgerald involved official acts, the logic of the opinion, which “placed primary reliance on the prospect that the President’s discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages,” applies with equal force to this case. 72 F. 3d, at 1367. In his view, “unless exigent circumstances can be shown,” all private actions for damages against a sitting President must be stayed until the completion of his term. Ibid. In this case, Judge Ross saw no reason why the stay would prevent respondent from ultimately obtaining an adjudication of her claims.
In response to the dissent, Judge Beam wrote a separate concurrence. He suggested that a prolonged delay may well create a significant risk of irreparable harm to respondent because of an unforeseeable loss of evidence or the possible death of a party. Id., at 1363-1364. Moreover, he argued that in civil rights cases brought under § 1983 there is a “public interest in an ordinary citizen’s timely vindication of . . . her most fundamental right against alleged abuse of power by government officials.” Id., at 1365. In his view, the dissent’s concern about judicial interference with the functioning of the Presidency was “greatly overstated.” Ibid. Neither the involvement of prior Presidents in litigation, either as parties or as witnesses, nor the character of this “relatively uncomplicated civil litigation,” indicated that the threat was serious. Id., at 1365-1366. Finally, he saw “no basis for staying discovery or trial of the claims against Trooper Ferguson.” Id., at 1366.
III
The President, represented by private counsel, filed a petition for certiorari. The Acting Solicitor General, representing the United States, supported the petition, arguing that the decision of the Court of Appeals was “fundamentally mistaken” and created “serious risks for the institution of the Presidency.” In her brief in opposition to certiorari, respondent argued that this “one-of-a-kind case is singularly inappropriate” for the exercise of our certiorari jurisdiction because it did not créate any conflict among the Courts of Appeals, it “does not pose any conceivable threat to the functioning of the Executive Branch,” and there is no precedent supporting the President’s position.
While our decision to grant the petition, 518 U. S. 1016 (1996), expressed no judgment concerning the merits of the case, it does reflect our appraisal of its importance. The representations made on behalf of the Executive Branch as to the potential impact of the precedent established by the Court of Appeals merit our respectful and deliberate consideration.
It is true that we have often stressed the importance of avoiding the premature adjudication of constitutional questions. That doctrine of avoidance, however, is applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonans for Official English v. Arizona, ante, p. 43, and comes into play after the court has acquired jurisdiction of a case. It does not dictate a discretionary denial of every certiorari petition raising a novel constitutional question. It does, however, make it appropriate to identify two important constitutional issues not encompassed within the questions presented by the petition for certiorari that we need not address today.
First, because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two, see, e. g., Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam), it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns, as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court, see 28 U. S. C. § 1442(a); Mesa v. California, 489 U. S. 121, 125-126 (1989). Whether those concerns would present a more compelling case for immunity is a question that is not before us.
Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so.
IV
Petitioner’s principal submission — that in all but the most exceptional cases,” Brief for Petitioner i, the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office — cannot be sustained on the basis of precedent.
Only three sitting Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations. Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign. After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U. S. C. App. §§501-525. The motion for a stay was denied by the District Court, and the matter was settled out of court. Thus, none of those cases sheds any light on the constitutional issue before us.
The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. We explained in Ferri v. Ackerman, 444 U. S. 193 (1979):
“As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion.” Id., at 202-204.
That rationale provided the principal basis for our holding that a former President of the United States was “entitled to absolute immunity from damages liability predicated on his official acts,” Fitzgerald, 457 U. S., at 749. See id., at 752 (citing Ferri v. Ackerman). Our central concern was to avoid rendering the President “unduly cautious in the discharge of his official duties.” 457 U. S., at 752, n. 32.
This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, “the sphere of protected action must be related closely to the immunity’s justifying purposes.” Id., at 755. Because of the President’s broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the “outer perimeter of his authority.” Id., at 757. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See id., at 759 (Burger, C. J., concurring) (noting that “a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties”); see also id., at 761, n. 4.
Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. “Frequently our decisions have held that an official’s absolute immunity should extend only to acts in performance of particular functions of his office.” Id., at 755. Hence, for example, a judge’s absolute immunity does not extend to actions performed in a purely administrative capacity. See Forrester v. White, 484 U. S. 219, 229-230 (1988). As our opinions have made clear, immunities are grounded in “the nature of the function performed, not the identity of the actor who performed it.” Id., at 229.
Petitioner’s effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.
V
We are also unpersuaded by the evidence from the historical record to which petitioner has called our attention. He points to a comment by Thomas Jefferson protesting the subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial, a statement in the diaries kept by Senator William Maclay of the first Senate debates, in which then-Vice President John Adams and Senator Oliver Ellsworth are recorded as having said that “the President personally [is] not. . . subject to any process whatever,” lest it be “put ... in the power of a common Justice to exercise any Authority over him and Stop the Whole Machine of Government,” and to a quotation from Justice Story’s Commentaries on the Constitution. None of these sources sheds much light on the question at hand.
Respondent, in turn, has called our attention to conflicting historical evidence. Speaking in favor of the Constitution’s adoption at the Pennsylvania Convention, James Wilson— who had participated in the Philadelphia Convention at which the document was drafted — explained that, although the President “is placed [on] high,” “not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis deleted). This description is consistent with both the doctrine of Presidential immunity as set forth in Fitzgerald and rejection of the immunity claim in this case. With respect to acts taken in his “public character” — that is, official acts— the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.
In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President’s power. “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side .... They largely cancel each other.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634-635 (1952) (concurring opinion).
VI
Petitioner’s strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is “above the law,” in the sense that his conduct is entirely immune from judicial scrutiny. The President argues merely for a postponement of the judicial proceedings that will determine whether he violated any law. His argument is grounded in the character of the office that was created by Article II of the Constitution, and relies on separation-of-powers principles that have structured our constitutional arrangement since the founding.
As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties. He submits that — given the nature of the office — the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed.
We have no dispute with the initial premise of the argument. Former Presidents, from George Washington to George Bush, have consistently endorsed petitioner’s characterization of the office. After serving his term, Lyndon Johnson observed: “Of all the 1,886 nights I was President, there were not many when I got to sleep before 1 or 2 a.m., and there were few mornings when I didn’t wake up by 6 or 6:30.” In 1967, the Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the performance of the powers and duties of the office; one of the sponsors of that Amendment stressed the importance of providing that “at all times” there be a President “who has complete control and will be able to perform” those duties. As Justice Jackson has pointed out, the Presidency concentrates executive authority “in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 663 (concurring opinion). We have, in short, long recognized the “unique position in the constitutional scheme” that this office occupies. Fitzgerald, 457 U. S., at 749. Thus, while we suspect that even in our modern era there remains some truth to Chief Justice Marshall’s suggestion that the duties of the Presidency are not entirely “unremitting,” United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807), we accept the initial premise of the Executive’s argument.
It does not follow, however, that separation-of-powers principles would be violated by allowing this action to proceed. The doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our Government. The Framers “built into the tripartite Federal Government... a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U. S., at 122, Thus, for example, the Congress may not exercise the judicial power to revise final judgments, Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995), or the executive power to manage an airport, see Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276 (1991) (holding that “[i]f the power is executive, the Constitution does not permit an agent of Congress to exercise it”). See J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928) (Congress may not “invest itself or its members with either executive power or judicial power”). Similarly, the President may not exercise the legislative power to authorize the seizure of private property for public use. Youngstown, 343 U. S., at 588. And, the judicial power to decide cases and controversies does not include the provision of purely advisory opinions to the Executive, or permit the federal courts to resolve nonjusticiable questions.
Of course the lines between the powers of the three branches are not always neatly defined. See Mistretta v. United States, 488 U. S. 361, 380-381 (1989). But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as “executive.” Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies. Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch. The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.
Rather than arguing that the decision of the case will produce either an aggrandizement of judicial power or a narrowing of executive power, petitioner contends that — as a byproduct of an otherwise traditional exercise of judicial power — burdens will be placed on the President that will hamper the performance of his official duties. We have recognized that “[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” Loving v. United States, 517 U. S. 748, 757 (1996); see also Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977). As a factual matter, petitioner contends that this particular case — as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn — may impose an unacceptable burden on the President’s time and energy, and thereby impair the effective performance of his office.
Petitioner’s predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. As we have already noted, in the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions. See supra, at 692. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.
Of greater significance, petitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome’ interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions. “[Ojur . . . system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which ‘would preclude the establishment of a Nation capable of governing itself effectively.’ ” Mistretta, 488 U. S., at 381 (quoting Buck ley, 424 U. S., at 121). As Madison explained, separation of powers does not mean that the branches “ought to have no partial agency in, or no controul over the acts of each other.” The fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution. Two long-settled propositions, first announced by Chief Justice Marshall, support that conclusion.
First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law. Perhaps the most dramatic example of such a case is our holding that President Truman exceeded his constitutional authority when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills in order to avert a national catastrophe. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our Article III jurisdiction to decide whether his official conduct conformed to the law. Our holding was an application of the principle established in Marbury v. Madison, 1 Cranch 137 (1803), that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177.
Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed to the President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807). We unequivocally and emphatically endorsed Marshall’s position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides. United States v. Nixon, 418 U. S. 683 (1974). As we explained, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Id., at 706.
Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5-6, President Nixon—as noted above—produced tapes in response to a subpoena duces tecum, see United States v. Nixon, President Ford complied with an order to give a deposition in a criminal trial, United States v. Fromme, 405 F. Supp. 578 (ED Cal. 1975), and President Clinton has twice given videotaped testimony in criminal proceedings, see United States v. McDougal, 934 F. Supp. 296 (ED Ark. 1996); United States v. Branscum, No. LRP-CR-96-49 (ED Ark., June 7, 1996). Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 7.1 (2d ed. 1992), and President Carter similarly gave videotaped testimony for use at a criminal trial, id., § 7.1(b) (Supp. 1997).
In sum, “[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Fitzgerald, 457 U. S., at 753-754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President’s time and energy that is a mere byproduct of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions. We therefore hold that the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office.
The reasons for rejecting such a categorical rule apply as well to a rule that would require a stay “in all but the most exceptional cases.” Brief for Petitioner i. Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the “exceptional case” subcategory. In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution. Accordingly, we turn to the question whether the District Court’s decision to stay the trial until after petitioner leaves office was an abuse of discretion.
VII
The Court of Appeals described the District Court’s discretionary decision to stay the trial as the “functional equivalent” of a grant of temporary immunity. 72 F. 3d, at 1361, n. 9. Concluding that petitioner was not constitutionally entitled to such an immunity, the court held that it was error to grant the stay. Ibid. Although we ultimately conclude that the stay should not have been granted, we think the issue is more difficult than the opinion of the Court of Appeals suggests.
Strictly speaking the stay was not the functional equivalent of the constitutional immunity that petitioner claimed, because the District Court ordered discovery to proceed. Moreover, a stay of either the trial or discovery might be justified by considerations that do not require the recognition of any constitutional immunity. The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e. g., Landis v. North American Co., 299 U. S. 248, 254 (1936). As we have explained, “[especially in cases of extraordinary public moment, [a plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted.” Id., at 256. Although we have rejected the argument that the potential burdens on the President violate separation-of-powers principles, those burdens are appropriate matters for the District Court to evaluate in its management of the case. The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_genapel1
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Max I. CHASTAIN v. Clarence M. KELLEY, Director, Federal Bureau of Investigation, Appellant.
No. 73-2137.
United States Court of Appeals, District of Columbia Circuit.
April 2, 1975.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 570 — 73).
Barbara L. Herwig, Atty., Dept, of Justice, with whom Irving'Jaffe, Acting Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept, of Justice, were on the brief, for appellant. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed, John A. Terry and Robert M. Werdig, Jr., Asst. U. S. Attys., also entered appearances for appellant.
Lawrence Speiser, Washington, D. C., for appellee.
Before FAHY, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.
Opinion for the Court filed by Circuit Judge McGOWAN.
McGOWAN, Circuit Judge:
The District Court ordered the Federal Bureau of Investigation to expunge all records of an incident giving rise to charges by it that one of its agents had, among other things, misused his credentials. After first suspending the agent and giving him notice of proposed dismissal, the Bureau subsequently decided not to take this action. It was two days late in filing an opposition to the motion to expunge, which had been promptly filed after the Bureau’s decision and as promptly granted. We think that there are interests at stake going beyond those of the immediate parties to this litigation, and which warrant our vacating the judgment entered by the District Court in order that the Government may be heard on the question of expungement.
I
Plaintiff-appellee became a Special Agent of the FBI in November of 1970. On March 8, 1973, he received a letter from L. Patrick Gray, III, then the Bureau’s Acting Director, informing him of his immediate suspension without pay and of his proposed dismissal as of thirty days from the letter’s receipt. The letter set out a number of grounds for these actions. They all arose from the circumstances we now summarize.
On January 29, 1973, appellee was on leave from his duties in the Bureau’s Washington-Field Office, and was spending several days in Virginia Beach, Virginia. His purpose, at least in part, was to visit a female friend who was married to a naval officer then absent on assignment. Plaintiff had grown intimate with the woman during his own earlier naval service. She informed him upon arrival that another woman, a mutual acquaintance and also a resident of Virginia Beach, had recently complained of receiving a number of obscene telephone calls. Appellee came to the complainant’s aid. He went to the home of the neighbor whom she suspected was responsible for the calls. Gaining entrance, he displayed his FBI credentials and asked the neighbor a number of probing questions aimed at discovering whether he was indeed the culprit. The neighbor’s mother, who was present at the time, later reported the incident to the local FBI office in Norfolk, Virginia. After the interview, appellee reported back to the recipient of the telephone calls his conclusion that her suspicions about the neighbor were correct. He also divulged the neighbor’s true name, which he had discovered during the interview.
For this conduct, which appellee recounts in somewhat more innocuous terms but does not really deny, the Acting Director charged him with misuse of his FBI credentials, unauthorized disclosure (to the complainant about the telephone calls) of investigative information gained through his official position, and failure to inform the Special Agent in charge of the Norfolk office of an investigation within that agent’s territory. Appellee was further accused of not having kept his Washington superiors sufficiently informed of his whereabouts (he had left only the post office box number of his female friend) and also of “deception, lack of integrity, [and] uncooperative attitude.” The Acting Director gave as an example of the latter the fact that, in the course of applying to become a Special Agent, appellee had responded negatively to the question of whether he had any moral deficiencies, and had not reported the relationship he had had with the female friend during his earlier naval days.
On March 26, 1973, before final action was taken by the Bureau pursuant to its March 8 letter, appellee sued in the District Court for an order prohibiting his dismissal and restoring him to active duty. A temporary restraining order was entered against dismissal only. While appellee’s motion for a preliminary injunction was still pending, William Ruckelshaus replaced Gray as the Bureau’s Acting Director. Ruckelshaus cancelled the suspension and proposed dismissal, and also awarded plaintiff his back pay. On May 23 the Government moved that the case be dismissed as moot. Appellee moved the following day for an order requiring the FBI (1) to expunge all records relating to the suspension and proposed dismissal, (2) never to base any further personnel action on those matters, and (3) to inform all those agencies to which the FBI had disseminated information about them that the charges had been withdrawn. On June 6 the District Court dismissed the case as moot, and, no opposition having been filed by the Government, granted the motion for expungement.
II
The federal courts are empowered to order the ' expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute. See, e. g., Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017, 1023 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, 966 (1973); Menard v. Mitchell, 139 U.S.App. D.C. 113, 430 F.2d 486 (1970). The cited cases involved the retention and dissemination of criminal records, and it is in that context that the propriety of ex-pungement orders has been most thoroughly explored. Since the power to order expungement is, however, only an instance of the general power of the federal courts to fashion appropriate remedies to protect important legal rights, it may also be invoked when the Government records in question are administrative rather than criminal.
The precedents in this latter regard are few, but they are clear enough. In Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955), for example, the Supreme Court held that the Loyalty Review Board, an organ of the Civil Service Commission established to review the recommendations of federal agencies that employees be dismissed for disloyalty to the United States, exceeded its jurisdiction in reopening the case of an employee whose loyalty had been approved by the relevant agency. The relief to which the Court found the employee entitled included “an order directing the respondent members of the Civil Service Commission to expunge from its records the Loyalty Review Board’s finding that there is a reasonable doubt as to petitioner’s loyalty . . ..” Id. at 348-349, 75 S.Ct. at 799.
Expungement, no less than any other equitable remedy, is one over which the trial judge exercises considera-^, ble discretion. It is a versatile tool: ex- j pungement of only some records, from j some Government files, may be enough, as may the placing of' restrictions on how J the information contained in the records' j may be used. It is a tool which must be ij applied with close attention to the peculiar facts of each case. Only in that way can it effect a proper reconciliation of the competing interests of the Government in retaining information relevant to job performance, and of the individual in having it forgotten. But it must be rationally and selectively responsive to those interests.
Appellee’s interest is in the vindication' of the rights alleged in his complaint, that is to say, in not being (i) suspended without pay during the thirty-day notice period in violation of the Veteran’s Preference Act, (ii) suspended or dismissed without such hearing as due process requires, (iii) penalized by one who was serving illegally as the Bureau’s Acting Director; or (iv) dismissed for improper or unsubstantiated reasons. These rights, assuming they exist, were in large part vindicated when appellee was reinstated with back pay.
There may remain a right not to be adversely affected by the information in the future. Such a right may exist if the information (1) is inaccurate, (2) was acquired by fatally flawed procedures, or (3) as may be the case with information about his private and personal relationships, is prejudicial without serving any proper pur.pose of tHe^Bureau’s. ' But there has not as yet been'a "finding by the trial court that any of these conditions exist. In fact, appellee has made no objection to the manner in which the Bureau carried out its inquiry, and he has admitted _ the substantial truth of what ft found with’ respect-to the misuse of his credentials. Moreover, the Bureau would appear to have a strong interest in retaining at least some of the information that the District Court ordered expunged. The abuse of official power by appellee in this case may seem a mild one, but even mild abuses, should they be tolerated and allowed to proliferate, will pose a severe threat to the public confidence upon which the Bureau relies.
The order may well have been justified at the time it was originally entered. The new Acting Director’s abandonment of the proposed disciplinary action could, in one view of the matter, be taken as implying an admission by him that the charges against appellee were inaccurate, improperly made, or simply insignificant. Such an admission might well have justified expungement, and might be presumed to have been made when the time in which to oppose expungement expired without the new Acting Director’s raising any objection. The reasonableness of that presumption was destroyed, however, when the Government filed its subsequent opposition, which included the following statements:
By the cancellation of the proposed dismissal and suspension, plaintiff was not absolved of any wrongdoing. The fact remains plaintiff did misuse his credentials and did unnecessarily involve the FBI in a matter over which it had no jurisdiction.
App. I at 52.
We do not know the precise reason for the cancellation. The new Acting Director may have considered only some of the charges against plaintiff to be credible and proper. Or — and what seems more likely — he may have thought the admitted misconduct insufficient, at least as a first offense, to warrant the severe sanction of dismissal. In any event, his opposition, albeit belated, raised doubts as to the propriety of ex-pungement, and strongly suggested the desirability of a hearing on its merits.
The expungement order must therefore be vacated, and is not to reissue prior to a hearing on the extent to which the information in the Bureau’s files violates appellee’s rights without serving any legitimate needs of the Bureau. In this connection we note the considerable latitude given the Bureau in its internal affairs, cf. Carter v. United States, 132 U.S.App.D.C. 303, 407 F.2d 1238, 1242 (1968), and also the limited relevance of the cases involving expungement of criminal records, the potential prejudicial effects of which far exceed that of the information here at issue. Compare Menard v. Saxbe, supra, 498 F.2d at 1024 (adverse effects of criminal records enumerated), with Finley v. Hampton, 154 U.S.App.D.C. 50, 473 F.2d 180 (1972) (effect of certain adverse information in employing agency’s files found not legally cognizable).
The part of the challenged order to which we see least objection is that requiring the Bureau to inform other agencies to which it has hitherto disseminated information about this matter that appellee was not in fact disciplined for it. Certainly it is the Bureau’s obligation to correct any erroneous information. Since the action the Board is required to take with respect to other agencies will otherwise depend on what it itself is required to do, however, it seems best to vacate the entire order and to allow the District Court to reexamine — -and perhaps to refashion — it in the light of what may be revealed by further proceedings.
Ill
The Government has not made it easy for the courts to protect its interest in this case. The challenged order was filed without opposition on June 6. On June 18 the Government moved for reconsideration under Fed.R.Civ.P. 60, but failed to allege any of the grounds upon which reconsideration may be granted thereunder. Instead, it asserted only that the order was “contrary to 44 U.S.C. § 3301 et seq., and the prevailing case law in this jurisdiction.” App. I 55. A supporting memorandum incorporated by reference the Government’s earlier untimely opposition to expungement, adding a case citation and quotations from 44 U.S.C. § 3301 et seq. Thus, the Government in its reconsideration motion attacked the district judge’s order on its merits, apparently assuming that Rule 60 gave it its first opportunity to appeal, which of course it does not. Gilmore v. Hinman, 89 U.S.App.D.C. 165, 191 F.2d 652, 653 (1951).
Perhaps the Government intended, as it now argues it did, to move under Rule 59(e) to alter or amend judgment. Actually the more appropriate motion was indeed under Rule 60. Expungement was ordered, we must assume for present purposes, because it was unopposed; and what the Government needed was to be relieved of this default. Rule 60 allows reconsideration of such a “default judgment” where the failure to oppose is due to “excusable neglect.” See 7 Moore, Federal Practice 248-251 (1974), and cases cited. As it happened, the Government offered no excuse whatsoever; and, under the circumstances, the district judge’s refusal to reconsider was certainly understandable.
It was not, however, required. Reliance on the wrong Rule may be overlooked, as neglect may be excused, in the discretion of the trial judge, and we do not think that that discretion was exercised to the best purpose in this instance. The Government’s errors, whether excusable or not, certainly worked no great inconvenience on the court, the opposition to expungement being out of time by only two days. More important, reconsideration was sought of an order on which there had never been a hearing on the merits, and which had the effect of removing from appellee’s personnel file all reference to what appears to have been a serious want of sound judgment on his part in the exercise of his official authority.
The latter factor is most persuasive for us. The expungement order on its face appears to flow as a natural consequence from the Bureau’s having abandoned its purpose to punish appellee by dismissal. It would indeed be unfortunate if in the future the Bureau were to think that, once it had proposed the suspension and dismissal of an employee, its only choices were to carry out that particular threat or to have all trace of the matter expunged from its records.
To be sure, we could limit the precedential effect of the district judge’s decision in this case by upholding it solely on the basis of the Government’s procedural oversights. But appellee was by his own admission guilty of “questionable judgment.” Should that lapse on his part be wiped from the Bureau’s records, it may be at the expense of other agents whose records better qualify them for promotion or other preferment. They should not suffer for the Government’s procedural errors, any more than should the public who bear the brunt of such lapses and who are entitled to have the Bureau’s personnel administration take them into account.
The judgment appealed from is vacated and the case remanded with instructions to allow the Government an opportunity to be heard in opposition to the motion for expungement in further proceedings consistent with this opinion.
It is so ordered.
TAMM, Circuit Judge, did not participate in the disposition of this case.
. Appellee submitted for in camera inspection by the District Court an affidavit in which, inter alia, he admitted the investigative visit to the house of the suspect neighbor, but maintained that during it he had been courteous, had displayed his credentials only to put the neighbor at ease, and had specified that his was not an official FBI investigation. App. II at 8-25.
. The order in its entirety required:
1. That defendant and his successors shall remove from plaintiffs personnel file and from all records of the Federal Bureau of Investigation any and all records, memoranda, documents, writings, statements of witnesses, and investigative records, describing, referring to or alluding to the facts upon which the suspension and the proposed termination of plaintiff were based; and
2. That defendant and/or his successor or successors are permanently enjoined from using any of the information or records referred to in Paragraph 1 of this Order or any records relating to this suit as criteria for advancement, promotion, salary increase or any other professional award or for any disciplinary action or termination of employment; and
3. That defendant and/or his successor or successors shall contact any and all agencies, including the United States Civil Service Commission, to which they have disseminated any information regarding plaintiff and the facts upon which plaintiffs suspension and proposed termination or this suit were based and inform each such agency that the Bureau had withdrawn the suspension and proposed termination and that this Court has requested each such agency to remove any and all references of the above from any of its records;
App. I at 49-50.
. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v. McLeod, 385 F.2d 734, 748-750 (5th Cir. 1967).
. Accord, Service v. Dulles, 98 U.S.App.D.C. 268, 235 F.2d 215, 219 (1956) rev’d on other grounds, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). See also Smith v. District Unemployment Compensation Board, 140 U.S.App.D.C. 361, 435 F.2d 433, 439 (1970) (Federal agency’s finding that ex-employee had resigned without cause, which finding made her ineligible for unemployment compensation, stricken unless required hearing provided). Cf. Finley v. Hampton, 154 U.S. App.D.C. 50, 473 F.2d 180 (1972) (presence in files of federal agency that employee had friends with “homosexual mannerisms” did not constitute cognizable legal_injury);_Newell v. Ignatius, 132 U.S.App.D.C. 252, 407 F.2d 715 (1969) (suit by naval disenrollee to expunge records of alleged disloyalty mooted by Navy’s voluntary expungement).
In Janca v. Gray, Civil No. 1351-71 (D.D.C., filed April 2, 1973), two ex-employees of the FBI alleged that they had been illegally discharged because of their off-hours work for an organization which opposed certain foreign American military involvements. Following a default judgment, the Bureau was ordered, in terms similar to those of the order herein appealed from, to expunge all records of the incident, to base no future personnel ac*’"" thereon, and to bring the court’s order to the attention of all other agencies to which information concerning the incident had been disseminated. An appeal was taken but subsequently abandoned by the Government.
Were it necessary to protect important statutory or constitutional rights of appellee, ex-pungement in this case would not be prevented, as the Government has argued, by the command of 44 U.S.C. § 3314 (1970) that Government records “may not be alienated or destroyed except under this chapter.” Since it clearly effects no repeal of other provisions, this general statutory command must be reconciled with other statutory requirements, and must bow to them when they are more specific, as of course it must bow to the Constitution.
. App. I at 4-10.
. See note 4 supra (last paragraph).
. It is not as clear as the Government seems to have assumed that a movant under Rule 59(e) may seek to “alter or amend” a judgment simply because it was erroneous. Cf. Erickson Tool Co. v. Balas Collet Co., 277 F.Supp. 226, 234 (N.D.Ohio 1967) (not the purpose of Rule 59(e) to allow movant to seek “complete reversal of the Court’s judgment”), aff’d 404 F.2d 35 (6th Cir. 1968).
. See Hutches v. Renfroe, 200 F.2d 337, 341 (5th Cir. 1952); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952); 7 Moore Federal Practice 251 (1974).
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_constit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Edward J. FISCH, Ivan L. Glasscock, Appellants.
Nos. 72-2007, 72-2068.
United States Court of Appeals, Ninth Circuit.
Feb. 16, 1973.
Certiorari Denied May 29, 1973'.
See 93 S.Ct. 2742.
Edward V. Brennan (argued), of Ferris, Weatherford & Brennan, San Diego, Cal., Philip A. DeMassa (argued), San Diego, Cal., for appellants.
Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
Before TRASK and CHOY, Circuit Judges, and TALBOT SMITH, District Judge.
Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, Sitting by Designation.
PER CURIAM:
The case before us involves eavesdropping, not by the use of electronics or artificial means, but in the traditional “listening at the keyhole” sense. The convicted defendants were in a motel room and the agents listened from an adjoining room as the operation was discussed. The principal argument of appellants is that their right of privacy was thus invaded.
The appellants were charged in a four count indictment with, count one, conspiring to import, count two, importing, count three, conspiring to possess with the intention of distributing, and count four, possessing with the intention of distributing approximately 70 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963. After trial to the Court, appellant Fisch was found guilty on all four counts, and appellant Glasscock on counts one, two and three, but not guilty on count four. The case below is reported sub nom. United States v. Perry, 339 F.Supp. 209 (S.D.Cal., 1972).
The modus operandi was somewhat unusual. The marijuana was dropped from an airplane onto an area west of Vulcan Mountain, near the Santa Ysabel Indian Reservation. The drop area was marked by flares. These flares were observed by a retired California Division of Forestry ranger, Mr. Tobin, who stopped to investigate. As he approached, he observed two cars nearby, and two men. One asked if he was from the garage. He answered that he was not and inquired as to their “problem.” He was told they had a flat tire and trouble underneath the car. Unable to observe any flat, he took the license numbers of the cars, obtained the names of the men, Glasscock (appellant herein) and Thorpe, and suggested that they might obtain mechanical assistance at the Santa Ysabel Standard station. After telling them to extinguish the flares, he left the area. On the following day, September 24, this information was given to Deputy Sheriff Gene Cowley, of the San Diego County Sheriff’s Office. At the same time Deputy Cowley received another report. This, from Wayne and Larry King, residents of the Santa Ysabel Indian Reservation, was delivered by one of the Santa Ysabel Mission Tribe, Anthony Taylor. The message was that a red and white airplane had been observed circling in the area of Vulcan Mountain and that it had dropped two objects during one of its passes. This had occurred at about the same time that Tobin had encountered the burning flares.
In patrolling the area of the aircraft drop immediately thereafter, Cowley observed the same Ford van previously described to him by Tobin travelling very slowly down the highway. The back end of the van was dirty and the license could not be read. A tail light was defective. Cowley stopped the van and asked the occupants (Glasscock and Thorpe) to produce identification. Indiana driver’s licenses were produced, as well as a California registration, Glass-cock stating that they had borrowed the van from a Sacramento friend, James Nash. As Cowley was running a name check on the occupants, he asked permission to check the van further, which was given by Glasscock, the driver. Under the right front seat Cowley observed an aerial navigation map. It was opened to expose the Julian Omni station on Vulcan Mountain, and on it a line had been drawn from the Vulcan site northwest, intersecting Highway 79 at the point of the suspected air drop, near where the van had been observed by Ranger Tobin on the previous evening. Upon the completion of the name check the van was released.
Later that day Cowley was informed that Larry and Wayne King, who had observed the plane circling the day before, making the drop, had found a duf-fle bag containing 13 kilos of marijuana on top of Vulcan Mountain. This bag had been turned over to Border Patrol Agents in the area. Two days later a second duffle bag was found by the tribesman, Anthony Taylor. A few minutes after making the find Taylor encountered three unidentified males who told him they were there for fishing. He told them they were trespassing on Indian land and the bag was delivered to Deputy Cowley.
Again, on September 28, 1971, Deputy Cowley observed the Ford van parked off the highway near the area of the drop. No one was observed nearby but the engine was warm. Upon resuming patrol, he later observed the van on the highway. The license plate was still dirty and the tail light still defective. Glasscock showed Cowley a receipt for work done on the van and he was merely warned, not cited, upon his promise to make the necessary repairs. It was ascertained at this time also that the men were staying at the Holiday Inn Motel, Mission Valley. This information had been requested by Cowley’s superiors and was transmitted to them.
Deputy Sheriff Perkins was then assigned to the Holiday Inn, Mission Valley. He learned from the motel clerk that Glasscock and Thorpe were registered in Room 514. Perkins requested an adjoining room but none was available, so he registered in 508. Upon the Deputy’s request, and upon being informed that a smuggling investigation was underway, the motel clerk moved Glasscock and Thorpe to room 506 (adjacent to 508), upon the excuse that others had prior reservations on their room.
Aural surveillance was then begun. An attempt was made to use a suction cup electronic device but it was defective and nothing intelligible could be heard from it so its use was abandoned. All relevant conversations were heard by the naked ears of the officers. Some of the conversation was so loud that it was heard by an agent sitting on the bed in the middle of the room, specifically in part, the questioning of Fisch, the pilot, by Glasscock as to his speed when he made the drop. Other parts were heard by listening prone at the door, lying some six or eight inches away from a crack between door and carpet, leaving “room for your notebook to take notes.” There was talk of drug usage, of the “specific deal,” the problems they had had, the “trouble finding the stuff in the area” and how “they had been hassled by the Sheriffs in the area, and the Indians and the Ranger.” Glasscock indicated that the next time “they were going to do a little bit more research into the area.” He also telephoned one “Don” for help in locating the marijuana, arrangements being made for three more men to assist in the search. In short, there was ample disclosure and admission of the criminal smuggling operation then and there under execution. Arrests of the occupants of Room 506 were made immediately after the telephone call to “Don,” and of the three men upon their arrival.
Against this overwhelming array of evidence, the appellants assert to us, as defendant Fisch puts it, that there has been a “gross invasion of privacy,” or in the words of appellant Glasscock, a “sad and shocking disregard for appellant’s constitutional right of privacy.” In addition, complaint is made of the stop and search of the Ford van on the morning of the 24th, and of the information and evidence obtained as a result of the second stop of the Ford van on September 28. We will consider the vehicle questions before proceeding to the privacy issue.
On the morning of September 24, it was obvious that activities of a highly suspicious nature were underway. By this time the passes of the circling airplane were known to Cowley, the drops from the plane, the flares burning in the field, and the presence of Glasscock and Thorpe, with their non-observable flat tire. Consequently, when Cowley, patrolling in the area of the observed drop, encountered the same van as had Tobin the day before, proceeding very slowly down the highway with its license plate obscured and a defective tail light, he was under a duty to stop the car. The occupants were questioned, identities sought to be established, names were obtained and a “name check” was made. While waiting for the results of the check, permission was asked and, the trial court found, granted to “look inside and check your van.” The reason for the search was Cowley’s reasonable unease about the situation presented. “The registered owner wasn’t either occupant,” he stated. “They were from Indiana. The van was registered in California, and they didn’t have any written permission to have the vehicles, and I wanted to look further.” The limited search made disclosed the aircraft navigation map marked as described above. When the “names came back checked all right” the men were released.
With respect to the stopping of the Ford van, the validity of the detentions and actions involved is governed by the State law, subject, of course, to constitutional standards. Wartson v. United States, 400 F.2d 25 (9th Cir. 1968), cert. denied 396 U.S. 892, 90 S.Ct. 184, 24 L.Ed.2d 166 (1969). The California Vehicle Code, § 2805, provides in part:
A member of the California Highway Patrol may inspect any vehicle . . . on a highway . . . for the purpose of locating stolen vehicles, investigating the title and registration of vehicles . . .
Under the applicable state law, the validity of a temporary detention by a peace officer for investigation and questioning is summarized in the case of People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545 (1967). Required is a rational suspicion on the part of the officer that something out of the ordinary is taking place, that there is “some indication” to connect the person under suspicion with such activity, and, of course, that such activity is related to crime. The Federal constitutional standard is found in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The ultimate question for resolution in each instance is whether the action taken by the officer was appropriate, tested not by the hunch of the officer, seasoned though he may be, but by an objective standard, namely whether the facts available to the officer at the moment of the seizure (or search) would warrant a man of reasonable caution in the belief that the action taken was appropriate to the situation there presented.
Looking to both the State and the Federal standards, it is obvious that they have been amply met. Something unusual, suspicious indeed of criminal activity, was taking place in this area and Glasscock and Thorpe were involved in it. The stop and search of the Ford van was justifiable and lawful. All statements and evidence resulting from the detention were properly admissible.
We have discussed the above issues at some length in deference to the zeal of counsel. It should be observed, however, that we find nothing in the record that would warrant our reversal of the District Court’s finding that Glasscock, in fact, consented to the limited search made.
We turn now to the second stop of the Ford van, that on September 28. By this time it was known that the packages dropped from the plane contained marijuana. Glasscock and Thorpe were still roaming around in the area with their fishing gear. Their vehicular defects were still uncorreeted. Under the totality of the circumstances there was now probable cause for arrest. The most vigorous representation to us at this point is that the real reason for the stop was to obtain the local address of the suspects. Under these circumstances we are not disposed to weigh the motives of the officers, to categorize, as appellants would have us do, into principal and secondary reasons for the stop, some of which are concededly good, others allegedly bad. There was in fact at this point reasonable grounds for further inquiry, questioning as to continued presence in the area, residence therein, reasons for not bringing the vehicle into compliance with the law, and other relevant and pertinent inquiries. There was nothing arbitrary, capricious, or unlawful in the officer’s actions at this point. The holding in Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), is peculiarly applicable at this point:
We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F,2d 328 (9th Cir. 1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing [361 F.2d at 415].
It is our conclusion, also, with respect to the second stop of the Ford van, that it was lawful and that all statements and any evidence obtained therefrom are admissible.
Coming now to privacy, there are several things this case is not, and it would be well to note them at this point. We have no telephone tap here. We have no bugging by electronic means. We have
no trespass. The officers were exercising their investigative duties in a place where they had a right to be and they were relying upon their naked ears. So using their natural senses, they heard discussion of criminal acts. What was heard, however, was expressed by speakers who insist that they were justifiably relying upon their right of privacy, who sought to keep their conversation private, who “did not expect that law enforcement officers would be located just a few inches away from the crack below the door connecting the two adjoining rooms,” and who thus conclude that “If one justifiably relies on his privacy any eavesdropping constitutes a search and seizure within the meaning of the Fourth Amendment.”
It is true, as appellants point out, that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), holds that “The Fourth Amendment protects people not places,” but this is not a rule of decision. Actually it is the Court’s expression of the rationale of decision, that the property concepts so long governing, substantially, decision as to unreasonable search no longer control. In short, this particular phrase, which is cited to us again and again, expresses little more than a rejection of the trespass rule. It does not tell us what people are protected, when they are protected, or why they are protected.
But it is clear from Katz that for' suppression of overheard speech the speaker must have “justifiably relied” on his privacy. As the concurring opinion of Mr. Justice Harlan makes clear, the concept of justifiable reliance involves both subjective and objective aspects. There must, first of all, have been a reliance on, an actual and reasonable expectation of, privacy. But beyond the individual’s expectations, the needs of society are involved. The individual’s subjective, self-centered expectation of privacy is not enough. We live in an organized society and the individual’s expectation of privacy must be justifiable, “one that society is prepared to recognize as ‘reasonable.’ ”
The statements before us fail of suppression on both aspects. As Mr. Justice Harlan points out, concurring, “ [Statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” Here the conversations complained of were audible by the naked ear in the next room. True the listening ear was at the keyhole, so to speak, but another listening ear was also, at one time, on the bed in the middle of the room, where was heard the pilot’s story. Appellants would have us divide the listening room into privileged or burdened areas, and the conversation into degrees of audibility to, we presume, the normal ear, thus a remark heard on the bed arguably admissible, but not those heard at the door, a loud remark admissible, arguably one uttered in “normal” tones, but definitely not one whispered. We find no precedent for a categorization involving such hair-splitting distinctions and we are not disposed to create one.
Listening at the door to conversations in the next room is not a neighborly or nice thing to do. It is not genteel. But so conceding we do not forget that we are dealing here with the “competitive enterprise of ferreting out crime.” The accomplishment of the move of the defendants’ room to one more accessible for surveillance violated no constitutional right of the appellants. They could, had they wished, refused the transfer. The officers were in a room open to anyone who might care to rent. They were under no duty to warn the appellants to speak softly, to put them on notice that the officers were both watching and listening. Their means of observation was not improper. In fact, they did not, with their naked ears, “intrude” upon the appellants at all. If intrusion there was it was, at times, the other way around, as anyone who has weathered the night in a motel room as the occupants next door partied and argued will bear ready witness.
The objection aspect of justifiable reliance, that the expectation be one recognized as reasonable by the current society, bars the bizarre, the freakish, and the weird expectations. A recent perceptive study poses the hypothetical of two narcotics peddlers who have chosen to rendezvous for an illegal transaction in a desolate corner of Central Park in the middle of the night and are surprised by a passing patrolman’s haphazard illumination of their transaction. Their expectation of privacy was undoubtedly reasonable. Yet whether their expectation would be constitutionally enforced would depend upon the social considerations involved, or, in the words of Mr. Justice Harlan, whether “the expectation be one that society is prepared to recognize as ‘reasonable.’ ”
The test applied as to society’s tolerance of the search rests, as it has for years, upon “the facts and circumstances — the total atmosphere of the case.” There is no ready formula, “each case is to be decided upon its own facts and circumstances.” What we undertake, actually, is a balancing process, a weighing of the social factors involved. Or, as Judge Duniway put it in the pre-Katz case of Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966), “The public interest in its privacy, we think, must, to that extent, be subordinated to the public interest in law enforcement.”
Here, on the one hand, there is no doubt that society invests a hotel room, transient though its occupancy may be, with that special character of intimacy justifying its characterization as a private place. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), cited in United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972). The “place,” though its ownership or possession no longer controls, remains as an element for our consideration under the Katz ruling. We consider, as well, the non-trespassory origin of the information received, the absence of artificial means of probing, with their potentialities for the wide-spread dissemination of total revelation, the gravity of the offense involved, here the smuggling of contraband. The type of information received from the aural surveillance is a factor to be considered in attempted delineation of the limits “of what society can accept given its interest in law enforcement,” whether society can “reasonably be required to honor that expectation [of privacy] in all cases.” The degree of probable cause before us is high, there being reasonable cause for the police to believe that the room in question was being used in aid of a criminal venture.
Upon balance, appraising the public and the private interests here involved, we are satisfied that the expectations of the defendants as to their privacy, even were such expectations to be considered reasonable despite their audible disclosures, must be subordinated to the public interest in law enforcement. In sum, there has been no justifiable reliance, the expectation of privacy not being “one that society is prepared to recognize as ‘reasonable.’ ”
Affirmed.
. This section of the Code has been held to apply to peace officers generally. People v. Brown, 4 Cal.App.3d 382, 84 Cal.Rptr. 390 (1970).
. Katz v. United States, supra, at 351, 88 S.Ct. at 511.
. Id., at 353; 88 S.Ct. 507.
. Id., at 361, 88 S.Ot. at 516.
. Id. See also, Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969).
. “ [I] t would seem rather arbitrary to draw a constitutional line between the whisper and the shout.” People v. Guerra, 21 Cal.App.3d 534, 98 Cal.Rptr. 627 (1971).
. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
. “The enforcement of the criminal law is not, however, a mere sporting game, and the hunters, as well as the hunted, have their problems.” United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971).
. Pope, J., concurring in Smayda v. United States, 352 F.2d 251 (9th Cir. 1965).
. Sometimes phrased as “reasonable and legitimate expectation of privacy,” United States v. Missler, 414 F.2d 1293 (4th Cir. 1969).
. “From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection,” 43 N.Y.Univ.L.R. 968 (1968).
. 389 U.S. at 361, 88 S.Ct. at 516.
. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).
. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).
. See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), giving (in a search warrant situation) “full recognition to the competing public and private interests.” See, also, State v. Smith, 37 N.J. 481, 181 A.2d 761, cert. denied 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963), quoted in People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 (1969), “But it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement, the ITourth Amendment itself draws the blinds [to the window] the occupant could have drawn but did not” (Italics 77 Cal.Rptr. 222, 453 P.2d 726).
. “As the Court’s opinion states, ‘the Fourth Amendment protects people not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ ” 389 U.S. at 361, 88 S.Ot. at 516, Harlan, J., concurring.
. See Fried, “Privacy,” 77 Yale L.J. 475 (1968).
. Remington, “Criminal Justice Administration,” 73, “Each of the methods which police may use in collecting evidence of crime has its own problems — problems of effectiveness, of intrusiveness, of interference with innocent people, of susceptibility to regulation. The seriousness of the criminal conduct may affect the degree to which people will tolerate intrusive detection techniques.”
. 82 Harv.L.R. 63 (1968).
. Cf., Smayda v. United States, supra.
. Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507.
. Id., at 361, 88 S.Ct., at 516, Harlan, J., concurring.
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
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sc_casesourcestate
|
16
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
AMERICAN OIL CO. v. NEILL et al.
No. 19.
Argued January 25-26, 1965.
Decided April 26, 1965.
Frank I. Goodman argued the cause for appellant and for the United States, as amicus curiae. With him on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, I. Henry Kutz and Robert A. Bernstein for the United States, and Calvin Dworshak for appellant.
Allan G. Shepard, Attorney General of Idaho, argued the cause for appellees. With him on the brief were William M. Smith, Assistant Attorney General, Faber F. Tioay and Anton Hohler.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This appeal presents the issue of whether, where a licensed Idaho dealer in motor fuels sells and transfers gasoline outside the State for importation into the State by an agency of the Federal Government, the State of Idaho may constitutionally impose an excise tax upon the transaction on the theory that the dealer constructively “receives” the gasoline in Idaho upon its importation.
On June 26, 1959, invitations for bids were issued by the United States Government from the Regional Office of the General Services Administration (GSA) at Seattle, Washington, covering some 607 separate items — each designed to supply a distinct motor fuel need of a particular government agency at one of a multitude of locations in Idaho, Montana, Oregon, and Washington for the period from November 1, 1959, through October 31, 1960. Bids on each item were to be submitted to the Seattle office and were to be evaluated on their individual merits and accepted or rejected without reference to other items.
Appellant’s predecessor in interest, Utah Oil Refining Company (Utah Oil), is a Delaware corporation. Pursuant to the GSA invitation it transmitted bids from its offices in Salt Lake City, Utah, on various items. Included were numbers 63 and 64 dealing with the supply of approximately 200,000 and 1,000,000 gallons of gasoline, respectively, for the use of the Atomic Energy Commission (AEC) at Idaho Falls, Idaho. Bids on these two items were submitted in alternative form, quoting a price f. o. b. Salt Lake City and a price f. o. b. the AEC activity site in Idaho.
On October 26, 1959, Utah Oil’s bids on the two items were accepted in Seattle by the GSA. Under the terms of the contract gasoline was to be sold to the AEC at a designated price f. o. b. Bulk Plant, Salt Lake City. The total price did not include any state tax but provision was made for an increase in the contract price if any such tax was imposed.
In accordance with the contract, the AEC, or its operating agent, Phillips Petroleum Company, periodically ordered some 1,436,355 gallons of gasoline. Delivery was effected by Utah Oil in Salt Lake City. Although the facts subsequent to delivery are in dispute, it appears that thereafter common carriers, selected and paid by the AEC, transported the fuel from Salt Lake City to Idaho Falls where it was placed in AEC-owned storage tanks and used in AEC operations in Idaho.
During the time that Utah Oil was performing the contract, it was authorized to do business in the State of Idaho as a "licensed dealer” as defined by the Idaho Motor Fuels Tax Act, as amended, Idaho Code, Tit. 49, c. 12 (1957). This Act imposes an initial requirement that all motor fuel "dealers” hold a permit issued by the State Tax Collector. To procure such a permit one need only fill out an application, post bond, and pay a five-dollar filing fee. Securance of a permit is necessary before any dealer can “import, receive, use, sell or distribute any motor fuels” within the State. Idaho Code Ann. §49-1202 (1957).
A “dealer” is defined by § 49-1201 as any person who first receives motor fuels in the State within the meaning of the word “received.” As a dealer, one is required to make monthly reports to the State Tax Collector and pay an excise tax of six cents per gallon on all motor fuels “received” within the ambit of § 49-1201 (g). The Act then provides that the proceeds of the tax are to be placed into a state highway fund.
During its performance of the contracts Utah Oil submitted the required monthly reports. The State Tax Collector thereupon insisted that payment of the six-cent tax be forthcoming pursuant to § 49-1201 (g) due to the fact that Utah Oil was a licensed dealer in the State of Idaho which had sold motor fuel to an agency “not the holder of [a] ... dealer permit ... for importation into the state . . . from a point of origin outside the state.” Taxes totaling $86,181.30 were paid under protest. The instant litigation was then initiated in the District Court of the Third Judicial District of the State of Idaho for refund. Appellant claimed at the threshold that the imposition of the tax on an out-of-state sale to the Federal Government violated the Due Process, Commerce, and Supremacy Clauses of the Constitution.
The trial judge granted summary judgment for the appellant finding that the imposition of the tax violated the Due Process and Commerce Clauses since it was applied to a sale made outside of Idaho. On appeal the Idaho Supreme Court reversed, finding the constitutional objections to be without merit. 86 Idaho 7, 383 P. 2d 350. We noted probable jurisdiction, 377 U. S. 962, because the validity of a state statute had been upheld over an objection that it was repugnant to the Constitution. 28 U. S. C. § 1257 (2) (1958 ed.).
I.
When passing on the constitutionality of a state taxing scheme it is firmly established that this Court concerns itself with the practical operation of the tax, that is, substance rather than form. Wisconsin v. J. C. Penney Co., 311 U. S. 435, 443-444; Lawrence v. State Tax Comm’n, 286 U. S. 276, 280, and cases cited therein. This approach requires us to determine the ultimate effect of the law as applied and enforced by a State or, in other words, to find the operating incidence of the tax. Connecticut Gen. Life Ins. Co. v. Johnson, 303 U. S. 77, 80.
When a state court has made its own definitive determination as to the operating incidence, our task is simplified. We give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute’s reasonable interpretation it will be deemed conclusive. Such a situation is manifest in the instant case.
The trial judge found that the operating incidence of the tax clearly fell on the dealer:
“[T]he dealer is not in any way required to pass the tax on or collect it from the consumer, and the ultimate purchaser or' consumer has no responsibility whatsoever for payment of the tax. While it may be the overall policy of the state to collect a tax of 60 per gallon on all gasoline used to propel motor vehicles over Idaho state highways, the taxable event or transaction is not the use by the local consumer or purchaser, but the 'receipt’ of the gas by the dealer. It cannot be said under this statute that the licensed dealer is the mere collector of a tax from the purchaser or user . . . .”
This conclusion was further buttressed by finding that the Idaho administrative interpretation of the statute in the past has been to treat it as a privilege tax upon the dealer.
On appeal the Idaho Supreme Court left the trial court’s conclusions undisturbed. Moreover, the State Attorney General in his brief before this Court expressly states that the tax “is a privilege tax, the incidence of which falls on the dealer . ...” This unanimity between the courts of Idaho and its agencies is to us in accord with the literal interpretation of the Act inasmuch as § 49-1210 clearly states that “each dealer shall pay to the commissioner an excise tax of six cents per gallon on all motor fuels . . .” with no coinciding provision passing the burden of the tax to the purchaser. We therefore give the findings below controlling effect and hold that the incidence of the tax falls on the dealer.
II.
Although the Idaho Supreme Court agreed with the trial judge that the taxed events were the sales of gasoline in Utah, two factors were considered sufficient to bring the transactions within the purview of Idaho’s taxing power. First, Utah Oil sold the gasoline with knowledge that it would be imported into and used within Idaho; and, second, Utah Oil had been authorized to do business in Idaho having applied for and received a dealer’s permit “authorizing it to enter into the Idaho market as a distributor of motor fuels . . . .” 86 Idaho, at 23, 383 P. 2d, at 360. We conclude that these considerations are insufficient to uphold the tax as against attack under the Due Process Clause.
The mere fact that Utah Oil knew that the gasoline was to be imported into Idaho merits little discussion. More than once this Court has struck down taxes directly imposed on or resulting from out-of-state sales which were held to be insufficiently related to activities within the taxing State, despite the fact that the vendor knew that the goods were destined for use in that State. Miller Bros. Co. v. Maryland, 347 U. S. 340 (use tax); Norton Co. v. Department of Revenue, 340 U. S. 534 (gross receipts tax); McLeod v. J. E. Dilworth Co., 322 U. S. 327 (sales tax).
These cases have also firmly established the doctrine that when a tax is imposed On an out-of-state vendor, “nexus” between the taxing State and the taxpayer is the outstanding prerequisite on state power to tax. -Consistent with this requirement there must be “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.” Miller Bros. Co. v. Maryland, supra, at 344-345. Granted that when a corporation, pursuant to permission given, enters a State and proceeds to do local business the “link” is strong. In such instances there is a strong inference that it exists between the State and transactions which result in economic benefits obtained from a source within the State’s territorial limits. The corporation can, however, exempt itself by a clear showing that there are no in-state activities connected with out-of-state sales. In such instances, the transactions are said to be “dissociated from the local business,” Norton Co. v. Department of Revenue, supra, at 537, and therefore may not, consistent with due process, be taxed.
In the present case it is plain that neither Utah Oil’s position as a licensed dealer in Idaho nor the fact that it otherwise engaged in business there will suffice to uphold the tax. Utah Oil’s transfer of gasoline was unquestionably an out-of-state sale vis-a-vis Idaho and entirely unconnected with its business in that State. Each and every phase of the transaction had its locus outside of Idaho: invitations for bids were issued by the Government in Seattle, Washington; Utah Oil submitted its bids from Salt Lake City; the bids were accepted in Seattle; the contract called for delivery of the gasoline f. o. b. Salt Lake City; Utah Oil delivered the gasoline to Salt Lake City, and it was there that title passed. There is no reason to suppose, nor does the record in any way indicate, that Utah Oil’s activities in Idaho contributed in any way to the procurement or performance of the contract. Compare Norton Co. v. Department of Revenue, supra, with General Motors Corp. v. Washington, 377 U. S. 436.
The Idaho Supreme Court was fully cognizant of these facts but chose to characterize Utah Oil’s dealer’s permit as authorizing it “to engage in the very activity it now claims is exempt from the tax.” 86 Idaho, at 23, 383 P. 2d, at 360. This statement, however, fails to reflect the clear holding by this Court that the granting by a State “of the privilege of doing business there and its consequent authority to tax the privilege do not withdraw from the protection of the due process clause the privilege” of doing business elsewhere. Connecticut Gen. Life Ins. Co. v. Johnson, supra, at 82. This is exactly the situation present in the instant case. Under the circumstances we hold the fact that Utah Oil was the holder of an Idaho dealer’s permit to be purely fortuitous.
Since we decide that the exacted tax violates the Due Process Clause, there is no need for discussion of constitutionality under the Commerce or Supremacy Clause. The decision of the Idaho Supreme Court is reversed and the case remanded to that court for proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Black dissents.
Although the invitation for bids issued by the GSA proposed the alternative delivery points it was discretionary with each bidder as to whether or not quotations for each point were submitted.
On the ground that the tax was not a “use tax” in the usual sense, the trial judge declined the offer of proof as to what occurred after delivery which was tendered by the State Tax Collector. The Idaho Supreme Court concurred, holding that such evidence was immaterial due to the fact that the status of Phillips Petroleum was only that of a contractor for the AEC.
The section provides, inter alia: “2. Motor fuel imported into this state other than that placed in storage at refineries or pipe line terminals in this state shall be considered to be received immediately after the same is unloaded and by the person who is the owner thereof at such time if such person is a licensed dealer; otherwise such motor fuel shall be considered to be received by the person who owned such fuel immediately prior to its being unloaded; provided, however, motor fuels shipped or brought into this state by a qualified dealer, which fuel is sold and delivered in thjs state directly to a person who is not the holder of an uncaneeled dealer permit, shall be considered to have been received by the dealer shipping or bringing the same into this state; further provided that motor fuel which is in any manner supplied, sold or furnished to any person or agency, whatsoever, not the holder of an uncanceled Idaho dealer permit, by an Idaho licensed dealer, for importation into the state of Idaho from a point of origin outside the state, shall be considered to be received by the Idaho licensed dealer so supplying, selling, or furnishing such motor fuel, immediately after the imported motor fuel has been unloaded in the state of Idaho!’ (Emphasis added.) Idaho Code Ann. § 49-1201 (g) (Supp. 1963).
Compare Railway Express Agency, Inc. v. Virginia, 347 U. S. 359, 369-372 (dissenting opinion), with Railway Express Agency, Inc. v. Virginia, 358 U. S. 434, 440-441.
Letter from Don J. McClenahan, Assistant Attorney General of the State of Idaho, to Bigelow Boysen, May 9, 1950. The conclusion was reached in this opinion that “the act places the legal incidence of the tax upon the dealer . . . and not on the vendee or consumer.” A decision by the Comptroller General also agrees with this conclusion. 24 Comp. Gen. 163 (1944).
Brief for the appellee, p. 5.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
sc_decisiontype
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
COLEMAN v. THOMPSON, WARDEN, et al.
No. A-877 (91-8336).
Decided May 20, 1992
Per Curiam.
As the District Court below observed, this is now the 12th round of judicial review in a murder case which began 11 years ago. Yet despite having had 11 years to produce exculpatory evidence, Coleman has produced what, in the words of the District Court, does not even amount to a “colorable showing of ‘actual innocence.’” Civ. Action No. 92-0352-R (WD Va., May 12, 1992), p. 19. We are hardly well positioned to second-guess the District Court’s factual conclusion — we certainly have no basis for concluding that Coleman has produced “substantial evidence that he may be innocent.” Post, at 189 (emphasis added). Indeed, a good deal of Coleman’s effort in this latest round is devoted to an attempt to undermine an expert’s genetic analysis that further implicated him in the crime — an analysis conducted after trial at Coleman’s request under the supervision of the Commonwealth’s courts.
Contrary to the dissent’s characterization, Coleman’s claim is far from “substantially identical” to that of Leonel Herrera, see Herrera v. Collins, No. 91-7328, cert. granted, 502 U. S. 1085 (1992). In Herrera the District Court concluded that the evidence of innocence warranted further inquiry. See 954 F. 2d 1029 (CA5 1992), Here, in contrast, the District Court reviewed Coleman’s claim of innocence and rejected it on the merits.
The application for stay of execution presented to The Chief Justice and by him referred to the full Court is denied.
It is so ordered.
Justice Stevens concurs in the denial of a stay and would deny the petition for writ of certiorari.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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