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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.
TARRANT REGIONAL WATER DISTRICT, Petitioner
v.
Rudolf John HERRMANN et al.
No. 11-889.
Supreme Court of the United States
Argued April 23, 2013.
Decided June 13, 2013.
Charles A. Rothfeld, Washington, DC, for Petitioner.
Ann O'Connell, for the United States, as amicus curiae, by special leave of the Court, supporting the Petitioner.
Lisa S. Blatt, Washington, DC, for Respondents.
Kevin L. Patrick, Scott C. Miller, Patrick, Miller, Kropf, & Noto, P.C., Aspen, CO, Clyde A. Muchmore, Harvey D. Ellis, L. Mark Walker, Crowe & Dunlevy, Oklahoma City, OK, Charles A. Rothfeld, Counsel of Record, Timothy S. Bishop, Michael B. Kimberly, Mayer Brown LLP, Washington, DC, for Petitioner.
E. Scott Pruitt, Attorney General, Patrick R. Wyrick, Solicitor General, Oklahoma Attorney, General's Office, Oklahoma City, OK, Charles T. DuMars, Esq., Law & Resource Planning Associates, P.C., Albuquerque, NM, Lisa S. Blatt, Counsel of Record, Andrew T. Karron, Sarah M. Harris, R. Reeves Anderson, Arnold & Porter LLP, Washington, DC, for Respondents.
Justice SOTOMAYOR delivered the opinion of the Court.
The Red River Compact, (or Compact), 94 Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact pre-empts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant's claims lack merit.
I
A
The Red River (or River) begins in the Llano Estacado Mesa on the border between New Mexico and Texas. From this broad plain, it first runs through the Texas Panhandle and then marks the border between Texas and Oklahoma. It continues in an easterly direction until it reaches the shared border with Arkansas. Once the River enters Arkansas, it turns southward and flows into Louisiana, where it empties into the Mississippi and Atchafalaya Rivers.
As an important geographic feature of this region, the Red River has lent its name to a valley, a Civil War campaign, and a famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma. But college pride has not been the only source of controversy between Texas and Oklahoma regarding the Red River. The River has been the cause of numerous historical conflicts between the two States, leading to a mobilization of their militias at one time, Oklahoma v. Texas, 258 U.S. 574, 580, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and the declaration of martial law along a stretch of the River by Oklahoma Governor "Alfalfa Bill" Murray at another, see Okla. H. Res. 1121, 50th Legislature, 2d Sess. (2006) (resolution commemorating "Alfalfa Bill" Murray's actions during the "Red River Bridge War"). Such disputes over the River and its waters are a natural result of the River's distribution of water flows. The River's course means that upstream States like Oklahoma and Texas may appropriate substantial amounts of water from both the River and its tributaries to the disadvantage of downstream States like Arkansas and especially Louisiana, which lacks sufficiently large reservoirs to store water.
Absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U.S. 605, 609, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), which often results in protracted and costly legal proceedings.
Thus in 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. See Act of Aug. 11, 1955, Pub.L. 346, 69 Stat. 654. These negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law. See Act of Dec. 22, 1980, 94 Stat. 3305; Compact, 1 App. 7-51.
One of the Compact's principal purposes was "[t]o provide an equitable apportionment among the Signatory States of the water of the Red River and its tributaries." § 1.01(b), id., at 9. The Compact governs the allocation of water along the Red River and its tributaries from the New Mexico and Texas border to its terminus in Louisiana. §§ 2.12(a)-(e), id., at 13. This stretch is divided into five separate subdivisions called "Reach[es]," ibid., each of which is further divided into smaller "subbasins," see, e.g., §§ 5.01-5.05, id., at 22-26 (describing subbasins 1 through 5 of Reach II). (See Appendix A, infra, for a map.)
At issue in this case are rights under the Compact to water located in Oklahoma's portion of subbasin 5 of Reach II, which occupies "that portion of the Red River, together with its tributaries, from Denison Dam down to the Arkansas-Louisiana state boundary, excluding all tributaries included in the other four subbasins of Reach II." § 5.05(a), 1 App. 24-25. (See Appendix B, infra, for a map.) The Compact's interpretive comments explain that during negotiations, Reach II posed the greatest difficulty to the parties' efforts to reach agreement. Comment on Art. V, 1 App. 27. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River's flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana.
The provisions of the Compact relating to Reach II were crafted to address this problem. To this end, Reach II was divided into five subbasins. The upstream subbasins, numbered 1 through 4, were drawn to end at "existing, authorized or proposed last downstream major damsites," see, e.g., § 5.01(a), id., at 22, on the tributaries leading to the Red River before reaching the main stem of the River. These dams allow the parties managing them to control water along the tributaries before it travels farther downstream and joins the flow of the main stem of the River. For the most part, the Compact granted control over the water in these subbasins to the States in which each subbasin is located. The remaining subbasin, subbasin 5, instead requires that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River's waters and solving its flowthrough problem.
The provision of the Compact central to the present dispute is § 5.05 (b)(1), which sets the following allocation during times of normal flow:
"(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS]." Id., at 25.
In these normal circumstances (i.e., when flows at the Arkansas-Louisiana border are above 3,000 CFS), this provision and its interpretive comment make clear that "all states are free to use whatever amount of water they can put to beneficial use." Comment on Art. V, id ., at 30. But if the amount of water above 3,000 CFS cannot satisfy all such uses, then "each state will honor the other's right to 25% of the excess flow." Ibid . However, when the flow of the River diminishes at the Arkansas-Louisiana border, the upstream States must permit more water to reach Louisiana.
Subbasin 5's allocation scheme allows upstream States to keep the water that they have stored, but also ensures that Louisiana will receive a steady supply of water from the Red River, with each upstream State contributing during times of low flow.
To ensure that its apportionments are honored, the Compact includes an accounting provision, but an accounting is not mandatory "until one or more affected states deem the accounting necessary." § 2.11, id., at 13; see Comment on Art. II, id., at 15-16. This is because the "extensive gaging and record keeping required" to carry out such an accounting would impose "a significant financial burden on the involved states." Id., at 16. Given these costs, the signatory States did "not envisio[n] that it w[ould] be undertaken as a routine matter."Ibid. Indeed, it appears that no State has ever asked for such an accounting in the Compact's history. See Brief for Respondents 45; Reply Brief 11-12.
While the Compact allocates water rights among its signatories, it also provides that it should not "be deemed to ... [i]nterfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact." § 2.10, 1 App. 12. Rather, "[s]ubject to the general constraints of water availability and the apportionment of the Compact, each state [remains] free to continue its existing internal water administration." Comment on Art. II, id., at 14. Even during periods of water shortage, "no attempt is made to specify the steps that will be taken [by States to ensure water deliveries]; it is left to the state's internal water administration." Ibid. B
In the years since the Red River Compact was ratified by Congress, the region's population has increased dramatically. In particular, the population of the Dallas-Fort Worth metropolitan area in north Texas has grown from roughly 5.1 million inhabitants in 2000 to almost 6.4 million in 2010, a jump of over 23 percent and among the largest in the United States during this period. See Dept. of Commerce, Census Bureau, P. Mackun & S. Wilson, Population Distribution and Change: 2000 to 2010 (Mar. 2011). This growth has strained regional water supplies, and north Texas' need for water has been exacerbated in recent years by a long and costly drought. See generally Galbraith, A Drought More Than Texas-Size, International Herald Tribune, Oct. 3, 2011, p. 4.
Against this backdrop, petitioner Tarrant, a Texas state agency responsible for providing water to north-central Texas (including the cities of Fort Worth, Arlington, and Mansfield), has endeavored to secure new sources of water for the area it serves. From 2000 to 2002, Tarrant, along with several other Texas water districts, offered to purchase water from Oklahoma and the Choctaw and Chickasaw Nations. See 2 App. 336-382. But these negotiations were unsuccessful and Tarrant eventually abandoned these efforts.
Because Texas' need for water only continued to grow, Tarrant settled on a new course of action. In 2007, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB), respondents here, to take 310,000 acre feet per year of surface water from the Kiamichi River, a tributary of the Red River located in Oklahoma. Tarrant proposed to divert the Kiamichi River, at a point located in subbasin 5 of Reach II, before it discharges into the Red River and, according to Tarrant, becomes too saline for potable use.
Tarrant knew, however, that Oklahoma would likely deny its permits because various state laws (collectively, the Oklahoma water statutes) effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma's borders. These statutes include a requirement that the OWRB consider, when evaluating an application to take water out of State, whether that water "could feasibly be transported to alleviate water shortages in the State of Oklahoma." Okla. Stat., Tit. 82, § 105.12(A)(5) (West 2013). The statutes also require that no permit issued by the OWRB to use water outside of the State shall "[i]mpair the ability of the State of Oklahoma to meet its obligations under any interstate stream compact." § 105.12A(B)(1). A separate provision creates a permitting review process that applies only to out-of-state water users. § 105.12(F). Oklahoma also requires legislative approval for out-of-state water-use permits, § 105.12A(D), and further provides that "[w]ater use within Oklahoma ... be developed to the maximum extent feasible for the benefit of Oklahoma so that out-of-state downstream users will not acquire vested rights therein to the detriment of the citizens of this state," § 1086.1(A)(3). Interpreting these laws, Oklahoma's attorney general has concluded that "we consider the proposition unrealistic that an out-of-state user is a proper permit applicant before the [OWRB]" because "[w]e can find no intention to create the possibility that such a valuable resource as water may become bound, without compensation, to use by an out-of-state user." 1 App. 118.
When Tarrant filed its permit application, it also filed suit against respondents in Federal District Court. As relevant here, Tarrant sought to enjoin enforcement of the Oklahoma water statutes by the OWRB. Tarrant argued that the statutes, and the interpretation of them adopted by Oklahoma's attorney general, were pre-empted by federal law and violated the Commerce Clause by discriminating against interstate commerce in water.
The District Court granted summary judgment for the OWRB on both of Tarrant's claims. See No. CIV-07-0045-HE, 2010 WL 2817220, *4 (W.D.Okla., July 16, 2010) ; No. CIV-07-0045-HE (W.D.Okla., Nov. 18, 2009), App. to Pet. for Cert. 72a-73a, 2009 WL 3922803, *8. The Tenth Circuit affirmed. 656 F.3d 1222, 1250 (2011).
We granted Tarrant's petition for a writ of certiorari, 568 U.S. ----, 133 S.Ct. 831, 184 L.Ed.2d 646 (2013), and now affirm the judgment of the Tenth Circuit.
II
A
Tarrant claims that under § 5.05(b)(1) of the Compact, it has the right to cross state lines and divert water from Oklahoma located in subbasin 5 of Reach II and that the Oklahoma water statutes interfere with its ability to exercise that right. Section 5.05(b)(1) provides:
"The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 [CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS]." 1 App. 25.
In Tarrant's view, this provision essentially creates a borderless common in which each of the four signatory States may cross each other's boundaries to access a shared pool of water. Tarrant reaches this interpretation in two steps. First, it observes that § 5.05(b)(1)'s "equal rights" language grants each State an equal entitlement to the waters of subbasin 5, subject to a 25 percent cap. Second, Tarrant argues § 5.05(b)(1)'s silence concerning state lines indicates that the Compact's drafters did not intend to allocate water according to state borders in this section. According to Tarrant, "the '25 percent' language [of § 5.05(b)(1) ] makes clear that, in exercising its 'equal rights' to the common pool of water, no State may take more than a one-quarter share, " Reply Brief 3, but any of the signatory States may "cross state lines to obtain [its]
shar[e] of Subbasin 5 waters," Brief for Petitioner 32.
The OWRB disputes this reading. In its view, the "equal rights" promised by § 5.05(b)(1) afford each State an equal opportunity to make use of the excess water within subbasin 5 of Reach II but only within each State's own borders. This is because the OWRB reads § 5.05(b)(1)'s silence differently from Tarrant. The OWRB interprets that provision's absence of language granting any cross-border rights to indicate that the Compact's drafters had no intention to create any such rights in the signatory States.
Unraveling the meaning of § 5.05(b)(1)'s silence with respect to state lines is the key to resolving whether the Compact pre-empts the Oklahoma water statutes. If § 5.05(b)(1)'s silence means that state borders are irrelevant to the allocation of water in subbasin 5 of Reach II, then the Oklahoma water laws at issue conflict with the cross-border rights created by federal law in the form of the Compact and must be pre-empted. But if § 5.05(b)(1)'s silence instead reflects a background understanding on the part of the Compact's drafters that state borders were to be respected within the Compact's allocation, then the Oklahoma statutes do not conflict with the Compact's allocation of water.
B
Interstate compacts are construed as contracts under the principles of contract law. Texas v. New Mexico, 482 U.S. 124, 128, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987). So, as with any contract, we begin by examining the express terms of the Compact as the best indication of the intent of the parties, see also Montana v. Wyoming, 563 U.S. ----, ----, and n. 4, ----, 131 S.Ct. 1765, 1771-1772, and n. 4, 1778, 179 L.Ed.2d 799 (2011) ; Restatement (Second) of Contracts § 203(b) (1979).
Tarrant argues that because other provisions of the Compact reference state borders, § 5.05(b)(1)'s silence with respect to state lines must mean that the Compact's drafters intended to permit cross-border diversions. For example, § 5.03(b), which governs subbasin 3 of Reach II, provides that
"[t]he States of Oklahoma and Arkansas shall have free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to ... 40 percent of the total runoff originating below the following existing, authorized or proposed last major downstream damsites in Oklahoma to flow into Arkansas." 1 App. 23-24 (emphasis added).
Section 6.03(b), which covers subbasin 3 of Reach III, similarly provides that "Texas and Louisiana within their respective boundaries shall each have the unrestricted use of the water of this subbasin subject to the following [conditions]." Id., at 33 (emphasis added). Thus, § 5.03 (b) and § 6.03(b) mimic § 5.05(b)(1) in allocating water rights within a subbasin, but differ in that they make explicit reference to water use "within" state boundaries. Relying on the expressio unius canon of construction, Tarrant finds that § 5.05(b)'s silence regarding borders is significant because " '[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed [that] Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Brief for Petitioner 29 (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ).
But Tarrant's argument fails to account for other sections of the Compact that cut against its reading. For example, § 5.05(b)(3), which governs the waters of subbasin 5 in Reach II when flows are below 1,000 CFS, requires that during such periods, Arkansas, Texas, and Oklahoma allow water "within their respective states to flow into the Red River as required to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state boundary." 1 App. 25 (emphasis added). Obviously none of the upstream States can redirect water that lies outside of their borders, so the phrase "within their respective states" is superfluous in § 5.05(b)(3). In contrast, § 5.05(b)(2), which governs when the River's flow at the Arkansas-Louisiana border is above 1,000 CFS but below 3,000 CFS, requires that upstream States allow a flow to Louisiana equivalent to 40 percent of total weekly runoff originating within the subbasin and 40 percent of undesignated water flowing into subbasin 5 of Reach II. Id ., at 25. This language can only refer to water within each State's borders because otherwise each State would have to contribute 40 percent to the total water flow, which would add up to more than 100 percent. Read together and to avoid absurd results, §§ 5.05(b)(2) and (3) suggest that each upstream State is individually responsible for ensuring that sufficient subbasin 5 water located within its respective borders flows down to Louisiana, even though § 5.05(b)(2) lacks any explicit reference to state lines.
Applying Tarrant's understanding of § 5.05(b)(1)'s silence regarding state lines to other of the Compact's provisions would produce further anomalous results. Consider § 6.01(b). That provision states that "Texas is apportioned sixty (60) percent of the runoff of [subbasin 1 of Reach III] and shall have unrestricted use thereof; Arkansas is entitled to forty (40) percent of the runoff of this subbasin." Id., at 32. Because Texas is upstream from Arkansas, water flows from Texas to Arkansas. Given this situation, the commonsense reason for § 6.01(b)'s 60-to-40 allocation is to prevent Texas from barring the flow of water to Arkansas. While there is no reference to state boundaries in the section's text, the unstated assumption underlying this provision is that Arkansas must wait for its 40 percent share to go through Texas before it can claim it. But applying Tarrant's understanding of silence regarding state borders to this section would imply that Arkansas could enter into Texas without having to wait for the water that will inevitably reach it. This counterintuitive outcome would thwart the self-evident purposes of the Compact. Further, other provisions of the Compact share this structure of allocating a proportion of water that will flow from an upstream State to a downstream one. Accepting Tarrant's reading would upset the balance struck by all these sections.
At the very least, the problems that arise from Tarrant's proposed reading suggest that § 5.05(b)(1)'s silence is ambiguous regarding cross-border rights under the Compact. We therefore turn to other interpretive tools to shed light on the intent of the Compact's drafters. See Oklahoma v. New Mexico, 501 U.S. 221, 235, n. 5, 111 S.Ct. 2281, 115 L.Ed.2d 207 (1991). Three things persuade us that cross-border rights were not granted by the Compact: the well-established principle that States do not easily cede their sovereign powers, including their control over waters within their own territories; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties' course of dealing.
1
The background notion that a State does not easily cede its sovereignty has informed our interpretation of interstate compacts. We have long understood that as sovereign entities in our federal system, the States possess an "absolute right to all their navigable waters and the soils under them for their own common use." Martin v. Lessee of Waddell, 16 Pet. 367, 410, 10 L.Ed. 997 (1842). Drawing on this principle, we have held that ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water, "is an essential attribute of sovereignty," United States v. Alaska, 521 U.S. 1, 5, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997). Consequently, " '[a] court deciding a question of title to [a] bed of navigable water [within a State's boundaries] must ... begin with a strong presumption' against defeat of a State's title." Id., at 34, 117 S.Ct. 1888 (quoting Montana v. United States, 450 U.S. 544, 552, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ). See also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) ; Utah Div. of State Lands v. United States, 482 U.S. 193, 195, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987).
Given these principles, when confronted with silence in compacts touching on the States' authority to control their waters, we have concluded that "[i]f any inference at all is to be drawn from [such] silence on the subject of regulatory authority, we think it is that each State was left to regulate the activities of her own citizens." Virginia v. Maryland, 540 U.S. 56, 67, 124 S.Ct. 598, 157 L.Ed.2d 461 (2003). Cf. New Jersey v. New York, 523 U.S. 767, 783, n. 6, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998) ("[T]he silence of the Compact was on the subject of settled law governing avulsion, which the parties' silence showed no intent to modify").
Tarrant asks us to infer from § 5.05(b)(1)'s silence regarding state borders that the signatory States have dispensed with the core state prerogative to control water within their own boundaries. But as the above demonstrates, States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence. We think that the better understanding of § 5.05(b)(1)'s silence is that the parties drafted the Compact with this legal background in mind, and therefore did not intend to grant each other cross-border rights under the Compact.
In response, Tarrant contends that its interpretation would not intrude on any sovereign prerogative of Oklahoma because that State would retain its authority to regulate the water within its borders. Because anyone seeking water from Oklahoma would still have to apply to the OWRB, receive a permit, and abide by its conditions, Tarrant argues that Oklahoma's sovereign authority remains untouched by its interpretation. But Tarrant cannot have it both ways. Adopting Tarrant's reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over the water within their borders when they agreed to the Compact. Given the background principles we have described above, we find this unlikely to have been the intent of the Compact's signatories.
2
Looking to the customary practices employed in other interstate compacts also helps us to ascertain the intent of the parties to this Compact. See Alabama v. North Carolina, 560 U.S. 330, ----, ----, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010); Oklahoma, 501 U.S., at 235, n. 5, 111 S.Ct. 2281; Texas v. New Mexico, 462 U.S. 554, 565, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983). See also Restatement (Second) of Contracts § 203(b) (explaining that "usage of trade" may be relevant in interpreting a contract). Many of these other compacts feature language that unambiguously permits signatory States to cross each other's borders to fulfill obligations under the compacts. See, e.g., Amended Bear River Compact, Art. VIII(A), 94 Stat. 12 ("[N]o State shall deny the right of another signatory State ... to acquire rights to the use of water ... in one State for use of water in another"). The absence of comparable language in the Red River Compact counts heavily against Tarrant's reading of it.
Tellingly, many of these compacts provide for the terms and mechanics of how such cross-border relationships will operate, including who can assert such cross-border rights, see, e.g., Kansas-Nebraska Big Blue River Compact, Art. VII(1), 86 Stat. 198, who should bear the costs of any cross-border diversions, see, e.g., Belle Fourche River Compact, Art. VI, 58 Stat. 96-97, and how such diversions should be administered, Arkansas River Basin Compact, Kansas-Oklahoma, Art. VII(A), 80 Stat. 1411. See also Brief for Professors of Law and Political Science as Amici Curiae 11-14 (giving more examples).
Provisions like these are critical for managing the complexities that ensue from cross-border diversions. Consider the mechanics of a cross-border diversion or taking of water in this case. If Tarrant were correct, then applicants from Arkansas, Texas, and Louisiana could all apply to the OWRB for permits to take water from Oklahoma. The OWRB would then be obligated to determine the total amount of water in Oklahoma beyond the 25 percent cap created in § 5.05(b)(1), given that the Compact would only obligate Oklahoma to deliver water beyond its quarter share. This alone would be a herculean task because the Compact does not require ongoing monitoring or accounting, see Compact § 2.11, 1 App. 13, and not all of the water in subbasin 5 is located or originates in Oklahoma. Moreover, the OWRB would be tasked with determining the priority under the Compact of applicants from other States. This would almost certainly require the OWRB to not only determine whether Oklahoma had received more or less than its 25 percent allotment, but whether other States had as well.
Put plainly, the end result would be a jurisdictional and administrative quagmire. The provisions in the other interstate water compacts resolve these complications. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the States' agreement.
Tarrant counters that not all interstate compacts that permit cross-border diversions have explicit language to this effect. On this front, Tarrant manages to identify one interstate compact that it contends permits cross-border diversions without express language to that effect, the Upper Niobrara River Compact, Pub.L. 91-52, 83 Stat. 86. Tarrant observes that this compact, which deals with a river mostly located in Nebraska with only a small portion in Wyoming, provides that "[t]here shall be no restrictions on the use of the surface waters of [the river] by Wyoming." See Art. V(A) 1, id ., at 88. Tarrant suggests that this language, coupled with the fact that the bulk of the river is in Nebraska, implicitly indicates that the compact grants Wyoming a right to enter Nebraska and use the river's water. First, we are not convinced that a single compact's failure to reference state borders does much to detract from the overall custom in this area. See supra, at 2133 - 2134, and n. 12. Second, the Upper Niobrara River Compact is not a helpful counterexample for Tarrant. The general provision that Tarrant quotes is paired with a host of detailed conditions. See Arts. V(A) 1(a)-(f), 83 Stat. 88. Contrary to Tarrant's position, then, assuming that the Upper Niobrara River compact does create any cross-border rights, it does so not through silence, but through the detailed scheme that would apply to any such contemplated diversions.
Tarrant also argues that § 2.05(d) of the Red River Compact, which provides that "[e]ach Signatory State shall have the right to" "[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,"
1 App. 11, in fact authorizes cross-border diversions. Because the present border between Texas and Oklahoma east of the Texas Panhandle is set by the vegetation line on the south bank of the River, Red River Boundary Compact, 114 Stat. 919, Tarrant contends that § 2.05(d) reflects an understanding on the part of the Compact's drafters that state borders could be crossed. But the issue is not as simple as Tarrant makes it out to be. When the Compact was drafted, the Texas-Oklahoma border was fixed at the south bank of the River. See Texas v. Oklahoma, 457 U.S. 172, 102 S.Ct. 2923, 72 L.Ed.2d 762 (1
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_circuit
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Freddie Lee BROWNER and Freddie Levi, Appellants, v. UNITED STATES of America, Appellee.
No. 12234.
United States Court of Appeals Sixth Circuit.
Oct. 15, 1954.
Samuel Posner, Detroit, Mich., for appellants.
George E. Woods, Asst. U. S. Atty., Detroit, Mich. (Fred W. Kaess, Detroit, Mich., on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
PER CURIAM.
In a trial for violation of the narcotic laws, agents of the Government were advised at seven o’clock, P. M., by an informer, that the appellants were to be at the informer’s house at approximately eight o’clock that night to deliver to him an ounce and a half of heroin. The agents proceeded to the informer’s house, where they concealed themselves. About half an hour later, two persons entered the house answering the description of them given to the agents by the informer. They were arrested and searched and, upon the person of one of them, there was found 405 grains of heroin, in violation of section 2553(a), Title 26, U.S.C.
At the trial, a motion to suppress the evidence was made on behalf of appellants on the ground that the search was made without a warrant and without probable cause to believe that the defendants were violating the law. The motion was denied, the evidence admitted, and a verdict of guilty returned by the court after waiver of a jury. The only issue relates to the reasonableness of the search.
Its validity must be determined by the reasonableness in the light of the particular facts and circumstances of the case. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The information received by the agents from the informer did not of itself warrant the arrest; but, when the defendants appeared at the home of the informer at approximately the time agreed upon and answered the description given to the agents, it imparted verity to the information received. The agents then were justified in believing that there was probable cause that a crime was being committed. It must be observed that the arrest was made and the search conducted at the home of the informer, and not at the home of the appellants. This distinguishes the case from that of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, where it was said that there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant, and that absence of any judicial approval is persuasive authority that it is unlawful. This is on the ground that it is always feasible to obtain a search warrant for a search of the dwelling place of those accused. Worthington v. United States, 6 Cir., 166 F.2d 557, was similar: likewise, it involved the search of the home of the accused.
In this case, it was of course not feasible to obtain a search warrant before the time of delivery of the narcotics had arrived. The suggestion of counsel for the appellants that the agents should have waited until delivery was made to give reasonableness to the arrest is not persuasive, since no opportunity was given the agents upon such short notice to provide the informer with three hundred dollars of Government money with which to make the purchase.
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_decisiontype
|
B
|
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.
POTOMAC NEWS CO. v. UNITED STATES.
No. 164.
Decided October 23, 1967.
Stanley M. Dietz for petitioner.
Solicitor General Marshall, Assistant Attorney General Vinson and Jerome M. Feit for the United States.
Per Curiam.
The petition for a writ of certiorari is granted and the judgment of the United States Court of Appeals for the Fourth Circuit is reversed. Redrup v. New York, 386 U. S. 767.
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:
|
songer_usc1
|
8
|
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. Humberto RIVERA, Defendant-Appellant.
No. 87-5681.
United States Court of Appeals, Fourth Circuit.
Argued July 11, 1988.
Decided Oct. 24, 1988.
Trevor Washington Swett, III (Geoffrey Judd Vitt, Caplin & Drysdale, Chartered, Washington, D.C., on brief), for defendant-appellant.
Paul G. Cassell, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Alexandria, Va., Keith A. Logan, Sp. Asst. U.S. Atty., William G. Otis, Asst. U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.
Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.
CHAPMAN, Circuit Judge:
Humberto Rivera was convicted of nine counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). The appellant claims error by the trial court in the admission of the deposition testimony of certain alien witnesses, who had been deported prior to trial; in failing to charge the jury that there must be proof of a direct and substantial relationship between the defendant’s conduct and the alien’s violation of the law; and in excluding evidence and forbidding argument relating to the eligibility of the aliens for amnesty. Finding no merit in these exceptions, we affirm.
I
Appellant was indicted following an investigation by the U.S. Immigration and Naturalization Service into the transportation of illegal aliens into the northern part of Virginia from other states. At a work site, a number of illegal aliens were arrested, and shortly thereafter appellant and three others were charged with illegal transportation of illegal aliens.
Following the arrest of Rivera and the aliens, Rivera posted bond and was released from custody. The illegal aliens could not arrange the posting of a bond and they were retained in custody for a period of approximately three weeks. An attorney was appointed for these aliens, and shortly thereafter he made a motion to have their testimony taken by deposition pursuant to the Material Witness Statute, 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15. This motion also asked that the illegal aliens be released from custody and allowed to leave the country. At the hearing on the motion the United States Attorney supported the taking of the depositions and the attorney for the appellant opposed. The trial judge, in granting the motion, made the following finding:
Exceptional circumstances have been shown in that the witnesses are being incarcerated awaiting a trial. And humanitarian considerations alone demand that something be done to release them from incarceration, when their only purpose for being incarcerated is to be witnesses. And whether they voluntarily flee after their depositions have been taken or whether the INS deports them back to their countries of origin is beside the point.
Pursuant to the court’s order, the depositions were taken and the appellant and his attorney were present at each deposition and participated therein, not only by cross-examining the witnesses, but by the attorney making certain comments into the record as to the demeanor and condition of the witness, i.e., “Let the record reflect that the witness is having a great deal of difficulty right now. He is very ill.” “Also let the record reflect that the witness has been disturbed and is very shaky, he is crying.”
After the depositions were taken the deposed aliens elected to voluntarily leave the country, rather than face normal deportation proceedings, and they were returned to Mexico.
At trial one of these depositions was read in its entirety, and since the other deposition testimony was quite similar, only selected portions of the direct and cross-examination of two other depositions were read. The evidence showed that Rivera leased a small apartment and that seven aliens lived with him in the apartment. Appellant took the witness stand and admitted that he had transported a number of aliens to work in Virginia and that he had also transported them from Ohio to Virginia. Initially, he denied that he knew that any of them were illegal aliens, but he finally admitted that he was aware, at the time of his arrest, that Nicolas Guerrero-Avila was an illegal alien. He also admitted that he had cashed checks for the aliens because they had no personal identification.
Upon conviction Rivera was sentenced to three years imprisonment on each count, with the sentences to run concurrently. However the sentences were suspended upon service of the short period of time that Rivera had been incarcerated, and he was placed on probation.
II
Appellant claims that the use of the depositions violated his Sixth Amendment right to be confronted by the witnesses against him. The thrust of this claim is that the depositions cannot be used until the trial court finds that the witnesses are “unavailable to testify”. He relies on Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Barber and Woods were jointly charged with armed robbery and at a preliminary hearing, Woods waived his privilege against self-incrimination and gave testimony incriminating Barber. Barber’s attorney did not cross-examine Woods. Seven months later Barber was tried on the robbery charge in Oklahoma. At this time Woods was in a federal prison in Texas, and the State of Oklahoma made no effort to obtain Woods’ presence at trial, but over petitioner’s objection, introduced the transcript of Woods’ preliminary hearing testimony, and claimed that Woods was unavailable to testify. Speaking through Justice Marshall, the Court noted that the State had made no effort to obtain the presence of Woods and it had assumed that the mere absence of the witness from the jurisdiction of the court was sufficient to show impossibility to compel his attendance. The court rejected this assumption of unavailability and concluded “... a witness is not “unavailable” for purposes of the foregoing exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.” 390 U.S. at 724-25, 88 S.Ct. at 1321-22.
Barber was discussed and distinguished by the court in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In Mancusi a Tennessee prosecutor introduced a transcript of direct and cross-examination of the witness who had left the United States and taken permanent residence in Sweden. Prior to trial the prosecutor had attempted to subpoena the witness at his last known address. The Court found that the witness was unavailable because the State of Tennessee was powerless to compel his attendance and the court pointed out that in Barber the state had not met its obligation to make a good-faith effort to obtain the presence of a witness and had merely shown that he was beyond the boundaries of the prosecuting state, but in Mancusi the witness was out of the country and beyond the compulsory processes of the court.
The appellant argues that the deported witnesses are not “unavailable,” because the United States by its own efforts made them unavailable by deporting them to Mexico. Actually, the witnesses left this country voluntarily after they were deposed and released from custody. The depositions resulted from a motion of the attorney representing the incarcerated alien witnesses. The appellant was heard on the motion and the judge made the necessary findings under Federal Rule of Criminal Procedure 15 and 18 U.S.C. § 3144. At the time the depositions were taken the witnesses could not make bail. If they were released from custody, they had no place to stay, and there was no way to ensure that they would be present at trial two months later. The appellant and his attorney were present at the taking of the depositions, the attorney cross-examined the witnesses, and he was allowed to make his personal observations of the witnesses a part of the record.
If the court had denied the motion for depositions, these alien material witnesses would have been incarcerated for more than three months, even though they were neither indicted nor convicted of a crime. The appellant was both indicted and convicted on nine counts, and he spent less time incarcerated than did these witnesses, who were deposed and deported.
We find that the trial court followed both the letter and spirit of 18 U.S.C. § 3144 and Rule 15, and its finding of Exceptional Circumstances was not clearly erroneous. On the present facts the illegal alien witnesses, who had been deposed and had left the country rather than await deportation, were unavailable within the meaning of Federal Rule of Criminal Procedure 15(e). The introduction of these depositions at appellant’s trial did not deny him the right of confrontation.
The United States Attorney had a dual responsibility in this case. It was his duty to consider the rights of the witnesses, as well as the rights of the appellant, and to also comply with his duty of deporting the illegal aliens without undue delay. This problem was recognized by the Court in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), in which the defendant was charged with transporting an illegal alien in violation of 8 U.S.C. § 1324(a)(2). Valenzuela-Bernal had been arrested shortly after he crossed the Mexican-United States border with five illegal aliens lying down in the back of his automobile. After arrest the defendant and the passengers were interviewed. Three of the passengers admitted they were illegally in the country and identified the defendant as the driver of the car. The United States Attorney concluded that the three passengers possessed no evidence material to the prosecution or the defense and two of the passengers were deported to Mexico. Following conviction Valenzuela-Bernal contended that he was denied his Fifth Amendment right to due process and Sixth Amendment right of compulsory process for obtaining favorable witnesses by the deportation of the two witnesses. The Court pointed out that the Executive Branch is charged with the responsibility of faithfully executing laws and stated:
... [t]he Government is charged with a dual responsibility when confronted with incidents such as that which resulted in the apprehension of respondent. One or more of the persons in the car may have violated the criminal laws enacted by Congress; but some or all of the persons in the car may also be subject to deportation as provided by Congress. The Government may, therefore, find itself confronted with the obligation of prosecuting persons in the position of respondent on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted.
The power to regulate immigration— an attribute of sovereignty essential to the preservation of any nation — has been entrusted by the Constitution to the political branches of the Federal Government. See Mathews v. Diaz, 426 U.S. 67, 81 [96 S.Ct. 1883, 1892, 48 L.Ed.2d 478] (1976). “The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens.’ ” Kleindienst v. Mandel, 408 U.S. 753, 766 [92 S.Ct. 2576, 2583, 33 L.Ed.2d 683] (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123 [87 S.Ct. 1563, 1566, 18 L.Ed.2d 661] (1967)). In executing this power, Congress has adopted a policy of apprehending illegal aliens at or near the border and deporting them promptly. Border Patrol agents are authorized by statute to make warrantless arrests of aliens suspected of ‘attempting to enter the United States in violation of ... law,’ 8 U.S.C. § 1357(a)(2), and are directed to examine them without ‘unnecessary delay' to determine ‘there is prima facie evidence establishing’ their attempted illegal entry. 8 C.F.R. § 287.3 (1982). Aliens against whom such evidence exist may be granted immediate voluntary departure from the country. See 8 U.S.C. § 1252(b); 8 C.F.R. § 242.5(a)(2)(i) (1982). Thus, Congress has determined that prompt deportation, such as occurred in this case, constitutes most effective effort for curbing the enormous flow of illegal aliens across our southern border.
Id. at 864, 102 S.Ct. at 3444-45.
The court also recognized the substantial financial and physical burdens upon the government resulting from any effort to detain alien witnesses and that it was impossible to prosecute many cases involving transportation and harboring of illegal aliens because of the witness problem.
In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), it was held that to establish a Sixth Amendment violation of the right to compulsory process required more than the mere absence of testimony, and that the criminal defendant must show that he was denied compulsory process for obtaining witnesses in his favor. In the present case Rivera has made no showing that he has been denied testimony favorable to him, nor has he shown that the deposition testimony was any different from what the live testimony of the witnesses would have been.
In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), it was determined that “the lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Id. at 74, 100 S.Ct. at 2543. We agree with the district judge that the actions of the United States Attorney in this case were reasonable. The motion to depose was made by the attorney for the witnesses and the U.S. Attorney supported the motion as being proper under the statute and the Federal Rules of Criminal Procedure as exceptional circumstances. Proper notice was given to appellant and his attorney was heard in opposition to the witnesses’ motion to have their depositions taken. Appellant and his attorney were present and participated fully in the taking of the depositions. The requirements and procedures of 18 U.S.C. § 3144 and Federal Rule of Criminal Procedure 15 were duly met and followed. The witnesses were entitled to release and their testimony could be and was adequately secured by deposition. The appellant was not prejudiced by the use of the depositions and the absence of the three illegal aliens.
The suggestions made by the appellant as to how the presence of the illegal aliens could have been assured at trial are all unrealistic and totally lacking in merit.
Other circuits have faced the problem of deposing illegal aliens and using deposition testimony in criminal trials. In United States v. Terrazas-Montano, 747 F.2d 467 (8th Cir.1984), the court found, on facts very similar to those now before us, that exceptional circumstances did exist to justify the use of the depositions of illegal aliens, who were deported prior to trial. The court found that they were “unavailable”, and to require the government to show that it was unable to procure their attendance at trial would be a useless act. The court also determined that “the trial-type setting of the depositions produced sufficient ‘indicia of reliability’ to satisfy the Sixth Amendment.” Id. at 469.
In United States v. Seijo, 595 F.2d 116 (2d Cir.1979), the court observed that when Federal Rule of Criminal Procedure 15 was originally adopted it only allowed criminal defendants to take depositions, but that the rule was amended in 1975 to permit the government to take depositions for use in criminal cases and conditioned admissibility of the deposition upon “unavailability” as defined in Rule 804(a) of the Federal Rules of Evidence. The court further found that Congress intended to expand the potential for the use of depositions by the government in criminal cases.
The appellant cites United States v. Provencio, 554 F.2d 361 (9th Cir.1977), which is not relevant because the aliens had not been released and were still available to testify. United States v. Vasquez-Ramirez, 629 F.2d 1295 (9th Cir.1980), is not applicable because the Federal Rules of Criminal Procedure were not followed in taking the deposition. Also, United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir.1987), is distinguishable because it involved a standing order issued by the judges of the Western District of Texas which required all alien material witnesses to be deposed and released within sixty days of their detention. The government confessed error primarily because the district court’s order did not address the issue of “exceptional circumstances” and that the district judges under the order exercised no discretion. The circuit court .reversed, but found that many of the issues raised by the standing order had not been properly briefed or addressed. We find no prece-dential value to this opinion.
III
We find no merit to the appellant’s claim that the judge erred in his instruction under 8 U.S.C. § 1324(a)(1)(B). Appellant contends that the judge did not give the charge that he had requested on the “substantial relationship between the transportation of the alien and the furtherance of the alien’s unlawful presence in the United States.” Although the trial judge did not use the exact language requested, he clearly and completely covered this element in his instructions and this exception is but a matter of semantics and not substance.
IV
The final exception is also without merit. Appellant claims that he was prevented from eliciting evidence and making arguments relating to the amnesty program for undocumented aliens. He asserts that he should have been able to argue that the aliens were eligible for amnesty and therefore they were not in the United States illegally. The amnesty program was created under the Immigration Reform and Control Act on November 6, 1986. Pub.L. 99-603, 100 Stat. 3359. The trial judge was correct in finding that it was irrelevant to the present case. The present prosecution is for violation of 8 U.S.C. § 1324(a)(1)(B) and it is necessary to show that the alien, who is transported by the defendant, “has come to, entered, or remains in the United States in violation of the law.... ” Amnesty is irrelevant until it is granted. The record reflects that the various aliens, who were transported by defendant, had come to and entered this country illegally. There was no evidence or proffer that any of them had applied for amnesty. If at some later time they may have been eligible to apply for amnesty, this does not change their illegal status at the time of entry and at the time of the illegal transportation. In his testimony Rivera did not testify that he thought any of the aliens were entitled to amnesty. The trial judge was correct in preventing the non-issue of amnesty from coming in and adding confusion to the case.
AFFIRMED.
. 8 U.S.C. § 1324(a)(1)(B) Bringing in and harboring certain aliens.
(a) Criminal Penalties.
(1) Any person who—
(B) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or move or attempts to transport or moves such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
shall be fined in accordance with Title 18, imprisoned not more than five years, or both, for each alien in respect to whom any violation of this subsection occurs.
. Title 18, § 3144 Release or Detention of a material witness.
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of § 3142 of this Title. No material witness may be detained because of inability to comply with any conditions of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
.Rule 15 of Federal Rules of Criminal Procedure.
Depositions.
(a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged, be produced at the same time and place. If a witness is detained pursuant to § 3144 of title 18, United States Code, the court on written notice of the witness and upon notice to the parties may direct that the witness’ deposition be taken. After the deposition has been subscribed the court may discharge the witness.
Rule 15(e):
(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness’ deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts.
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_counsel1
|
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.
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
PENNTECH PAPERS, INC., Appellee, v. UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO-CLC; and Local Union No. 710, United Paperworkers International Union, AFL-CIO-CLC, Appellants.
No. 89-3655.
United States Court of Appeals, Third Circuit.
Argued Feb. 9, 1990.
Decided Feb. 21, 1990.
Richard H. Markowitz (argued), Joseph T. Cleary, Markowitz & Richman, Philadelphia, Pa., Lynn Agee, Lynn C. Ivanick, United Paperworkers Intern. Union, AFL-CIO, Legal Dept. Nashville, Tenn., for appellants.
Ernest J. Collazo (argued), Robert V. Chisholm, Simpson Thacher & Bartlett, New York City, for appellee.
Before GREENBERG, SCIRICA and SEITZ, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.
Defendants, United Paperworkers International Union, AFL-CIO-CLC and Local No. 701, United Paperworkers International Union AFL-CIO-CLC (Union), appeal from a final order of the district court granting the plaintiff, Penntech Papers, Inc. (Penntech), summary judgment in its action to vacate an arbitration award. Our review is plenary.
The district court’s jurisdiction was based on Section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185 (1982). We have jurisdiction under 28 U.S.C. § 1291 (1982).
Penntech and the Union were parties to a collective bargaining agreement which was effective from June 10, 1986, through June 10, 1989. Under the terms of this agreement, if Penntech substantially changed the duties of an existing job classification so as to make its wage rate out of line with representative jobs in the plant, it was required to negotiate the matter with the Union.
On November 15, 1987, Penntech eliminated the Starch Mixer classification and incorporated the duties of this position within the existing job classification of Size and Clay Mixer. The Union filed a grievance alleging that such a change warranted a new wage rate for the Size and Clay Mixer position.
When no agreement could be reached, the Union presented the matter for arbitration under the arbitration provisions of the collective bargaining agreement. On May 5, 1989, the arbitrator found that the elimination of the Starch Mixer (or helper) position and the absorption of that job’s duties into the job of the Size and Clay Mixer (or operator) constituted a substantial change in the position.
The arbitrator further concluded that, since an increase of $.25 was implemented in a prior, similar restructuring, the wage rate of the Size and Clay Mixer was “out of line” with representative jobs in the plant. He, therefore, awarded an increase of $.25 per hour.
On May 25, 1989, Penntech filed suit to vacate and set aside the arbitrator’s award. The district court granted the company’s motion for summary judgment on the basis that the award did not draw its essence from the collective bargaining agreement. Specifically, it held that the arbitrator exceeded his authority in awarding a rate increase without detailed job duty/wage comparisons, which it concluded were called for by his construction of the collective bargaining agreement. This appeal followed.
The Supreme Court has narrowly circumscribed the scope of judicial review of a labor arbitration award. “Unless the arbi-tral decision does not ‘draw[] its essence from the collective bargaining agreement,’ a court is bound to enforce the award and is not entitled to review the merits of the contract dispute.” W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). We have consistently applied this standard in reviewing district court dispositions of arbitration cases. See, e.g., Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969). We turn to the present facts.
At the hearing before the arbitrator, the parties could not agree on the wording of the arbitral issue. Penntech proposed the following:
Have the duties of the Size and Clay Mixer changed substantially so as to bring its job rate out of line with representative jobs within the plant?
The Union’s version was as follows:
Have the duties and responsibilities of the Size and Clay Mixer classification changed enough since June 10, 1986, to warrant an increase in wages? If so, what shall the remedy be?
Penntech objected to the Union’s formulation on two grounds: that it used the word “enough” to refer to the change instead of the word “substantially” as provided for in the agreement; and that it did not contain the contract requirement that the job rate be out of line with other representative jobs. It is not disputed that the parties finally agreed to allow the arbitrator to formulate the issue.
The arbitrator accepted the Union’s framing of the issue, with the only modification being substitution of the word “substantially” for the word “enough.” The formulation did not contain the “out of line” language pertaining to the job rate, which Penntech had requested. After a hearing, the arbitrator filed an opinion and award in favor of the Union. He determined that there had been a substantial change in the Size and Clay Mixer job and that the appropriate remedy was a rate increase like that granted in a prior, similar situation.
The controlling provision of the collective bargaining agreement reads:
If the duties and responsibilities of any existing job classification are changed substantially after June 10, 1986, and/or a number of changes equaling a substantial change are made and the result is to bring its rate out of line with representative jobs within the plant, the Company will negotiate the matter upon written request of the Union. If a new wage is agreed upon, the changed rate will be retroactive to the date the substantial change occurred. r
The arbitrator found that the duties and responsibilities of the job in question changed substantially after June 10, 1986. Neither Penntech nor the district court disputed this finding. Rather, the district court disagreed with the arbitrator’s interpretation and application of the provision of paragraph 22 of the contract which requires a determination of whether the result of the change “is to bring its rate out of line with representative jobs within the plant.”
We conclude that the arbitrator did not ignore the provision at issue. Rather, he stated that it is reasonable to conclude that, if the rate for a job was in line with its duties at the outset, a substantial change in duties would bring its rate “out of line” with representative positions in the plant. The arbitrator acknowledged that evidence on the quoted provision was minimal, consisting solely of the Union’s testimony that a $.25 increase was awarded to the E. Rewinder when the utility employee was eliminated. He noted that such an increase in the instant case, though it would cause a jump in the relative standing of the Size and Clay Mixer position, would not cause the position to rise to the top of the rates for all positions. Thus, the arbitrator relied on precedent, rather than a job rate comparison, to determine whether the wage rate for the position was out of line.
In vacating the award, the district court held that paragraph 22 required the Union to prove and the arbitrator to find that the present rate was out of line with other jobs. That the arbitrator did so is plain in light of the award of a rate increase. The contract does not specify how he was to make the out-of-line determination. It does not require the wage rate comparison mandated by the district court. We find that consideration of a $.25 increase granted in a similar restructuring is a permissible method of determining that the wage rate for the Size and Clay Mixer position was out of line.
As the Supreme Court has said: “It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. at 1362. Our continued allegiance to this principle serves to protect the benefits of labor arbitration, namely, speed, flexibility, informality and finality.
The Union argues, alternatively, that the arbitrator’s award addressed the exact issue which the parties agreed to allow the arbitrator to formulate and, under controlling law, that should be the end of the matter. Penntech retorts that this legal theory was not advanced in the district court and therefore should not be considered on appeal. In view of our determination in favor of the Union on its first theory, we need not address this issue.
Accordingly, the judgment of the district court will be reversed and the matter remanded for further appropriate proceedings.
. Article VII, paragraph 23, provides:
If agreement cannot be reached on a proper wage rate for a new or changed job within thirty (30) days of the first bargaining meeting, the dispute may be processed beginning at Step Four (Arbitration) of the grievance procedure.
Article XI, paragraph 81, provides in pertinent part:
The decision of the Arbitrator shall be conclusive and binding on all parties concerned.
. The arbitrator erroneously stated that the parties agreed to the terms of the issue to be arbitrated. This error is of no moment here.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_fedlaw
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Hortex Manufacturing Company, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORTEX MANUFACTURING COMPANY, Inc., Respondent.
Nos. 18839, 18877.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 26, 1965.
Decided Feb. 18, 1965.
Mr. James Graham, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for petitioner in No. 18,839. Mr. Jacob Sheinkman, New York City, was on the brief for petitioner in No. 18,839.
Mr. Richard P. Lawlor, Atty., N. L. R. B., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Warren M. Davidson, Atty., N. L. R. B., were on the brief, for respondent in No. 18,839.
Mr. Richard P. Lawlor, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Pre-vost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., were on the brief for petitioner in No. 18,877, submitted on the brief.
Mr. John E. Price, Ft. Worth, filed a brief on behalf of intervenor-respondent, Hortex Mfg. Co., Inc., and the cases for Hortex Mfg. Co., were treated as submitted on the brief.
Before Danahee, Bastían and McGowan, Circuit Judges.
McGOWAN, Circuit Judge.
In one of these two appeals, Amalgamated Clothing Workers of America, AFL-CIO (the “Union”) complains in two respects of an order of the National Labor Relations Board. In the other, the Board seeks enforcement of its order as against the objections of the respondent employer, Hortex Manufacturing Company (“Hortex”). The order itself, entered in a proceeding initiated by the filing of unfair labor practice charges by the Union, adopted an Examiner’s report which found Hortex in violation of Section 8(a) (1) by reason of discriminatory discharges of three employees, and of Section 8(a) (3) by reason of such conduct as well as surveillance of union activities and various announcements and threats designed to discourage union affiliation. The order entered by the Board directs Hortex to (i) cease and desist from the anti-union activities found to be forbidden by Sections 8(a) (1) and (3), (ii) reinstate the three discharged employees with back pay, and (iii) post the usual notices. The Union says the Board did not go far enough in that it failed to find that (1) a refusal to arbitrate a grievance was a violation of Section 8(a) (5), necessitating enlargement of the order to require Hortex to cease and desist from refusing to bargain with the Union; and (2) speeches to employees by an attorney for Hortex constituted an additional violation of Section 8(a) (1).
We leave the Board’s order undisturbed and direct its enforcement as requested by the Board. We see no occasion to discuss in detail either Hortex’s objections to the Board’s findings, or the Union’s claim as to the additional 8(a) (1) violation. Our examination of the record discloses substantial evidence to support the Board’s findings on these issues, and there is no claim that the terms of the order are inappropriate to the violations found. Disruptive intervention by us into these determinations would, thus, take us outside the perimeter of proper judicial review as drawn by Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The 8(a) (5) contention advanced by the Union depends to a somewhat lesser degree on the resolution of disputes of fact, and warrants fuller discussion of why we withhold our hand in this respect as well. Some depiction of the setting of the dispute is essential to that discussion.
I
Hortex operates a clothing manufacturing plant in El Paso, Texas. For many years prior to the expiration on December 31,1962 of the latest collective bargaining agreement, the Union had been recognized as the exclusive representative of the production and shipping employees. Some indications of apathetic interest by the employees in the Union apparently caused Hortex to permit the contract to terminate and to seek a representation election. This election was held in May of 1963, and resulted in a substantial plurality against the Union. As indicated above, however, the Board found that, beginning in the autumn of 1962, Hortex was engaged in a campaign to discourage union membership which was characterized by certain actual violations of 8(a) (1) and 8(a) (3). One of the employees found to have been discrimina-torily discharged was Maria Tornero. This occurred on December 12, 1962. Under the grievance procedure provided in the then existing collective bargaining agreement, a timely grievance was filed by Tornero, and, after review and rejection at the specified management levels, the Union informed Hortex on February 8,1963 of its desire to have the grievance submitted to arbitration, which was the final step of the grievance machinery contained in the contract. Since the Tor-nero discharge was the subject of an unfair labor practice charge filed with the Board by the Union on December 27, 1962, Hortex, through its legal counsel, took the position that it would either submit to arbitration under the contract, or defend against the charge in the Board proceeding, but that it was not required to incur the trouble and expense of doing both at the same time. It asked the Union to elect one course or the other; and, upon the Union’s failure to do so, Hortex refused to arbitrate. That refusal was then made the subject of the filing of an 8(a) (5) charge by the Union.
The Examiner recommended dismissal of the charge. In his view, Hortex was on unsound legal ground in thinking it could require an election by the Union; and this error had the effect of placing Hortex in default under the contract. However, the Examiner noted what he conceived to be the Board’s position that not every breach of a collective bargaining agreement is per se an unfair labor practice and required to be treated as such. He also remarked the circumstances that Tornero was otherwise being restored to her job with back pay. In the light of these considerations, he recommended dismissal of the 8(a) (5) charge. The Board adopted this recommendation without discussion.
II
The Union does not challenge the existence of a general rule to the effect that breaches of collective bargaining agreements are not to be invariably equated with unfair labor practices. Indeed, it could not in this Circuit, at least in the face of what we said in International Union, UMW v. NLRB, 103 U.S.App.D.C. 207, 257 F.2d 211 (1958). There, in setting aside a Board order finding a union guilty of an unfair labor practice for striking rather than arbitrating under the contract, we said (103 U.S.App.D.C. at 210-211, 257 F.2d at 214-215):
“the Board was of the opinion that the unions committed a breach of contract when the employees struck * * *. Assuming that they did, that is not the end of the inquiry, because a breach of an employer-union contract is not, per se, an unfair labor practice. The legislative history of the Taft-Hartley Act shows that. * * *
******
“In the face of the legislative history just recited, it would seem that the Board has a heavy burden of persuasion that it does have authority to treat a violation of a term of a collective bargaining contract, even a term providing for the settlement of grievances by arbitration, as an unfair labor practice, and, in effect, decree its specific performance.
* * ’ * »
The Union, rather, urges upon us that the refusal to arbitrate in this instance was an exercise in bad faith by Hortex; and that this bad faith supplies the incremental element which compels the Board to treat a contract breach as an unfair labor practice. The bad faith here is said to reside in the circumstances that (1) the discharge of Tornero was itself an 8(a) (3) violation, (2) Hortex has been found guilty of other 8(a) (3) and (1) violations, and (3) Hortex did not rest its refusal to arbitrate upon a good faith claim that the dispute was not arbi-trable under the contract. At the time of the refusal to arbitrate, however, Hortex was preparing to defend itself, in a bona fide and non-frivolous fashion, against the alleged 8(a) (1) and (3) violations, including that relating to the discharge of Tornero. It did not refuse to arbitrate that discharge under any and all circumstances ; indeed, it signified its readiness to proceed promptly to arbitration on condition that the Union not press simultaneously the administrative litigation with respect to the Tornero discharge. Its professed concern was not that it be relieved altogether of the burden of meeting the Tornero charge in any forum but only that it not be put to the difficulty and expense of meeting it concurrently in two separate forums.
We agree with the Board’s conclusion that Hortex fell into legal error in its effort to put the Union to an election, and that this error had the consequence of converting Hortex into a contract violator. We have no basis for disagreeing, however, with what appears to us to have been the Board’s further conclusion that this breach was due more to mistaken legal advice than to a deliberate, purpose to subvert the terms of a collective bargaining agreement. Compare Local 833, UAW etc. v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied, Kohler v. Local 833, etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962). We do not see much difference, insofar as implications of bad faith are concerned, between a legal mistake of the kind here involved, and one concerning the scope or applicability of the contract. In either case the Board seems to us to have some latitude to draw inferences from the facts before it and to decide that the contract violation is not to be treated as an unfair labor practice. And a court should deny that latitude in a particular case only if it is convinced that the Board’s action is arbitrary or that the Board’s appraisal of the facts has no support in the record before it.
This approach seems to us necessarily to accord with the strong emanations from Congress to the effect that breaches of labor contracts are not normally the business of the Board. Such expressions were most in evidence in connection with the passage of the Labor Management Relations Act of 1947, and they manifested themselves in two ways. One was the inclusion in the Senate-passed bill of a provision that made an unfair labor practice of contract violations, including expressly refusals to arbitrate, and the subsequent elimination of this provision in conference for the reasons set forth in the conference report as follows:
“The Senate amendment contained a provision which does not appear in Section 8 of the existing law. This provision would have made it an unfair labor practice to violate the terms of a collective bargaining agreement or an agreement to submit a labor dispute to arbitration. The conference agreement omits this provision of the Senate amendment. Once parties have made a collective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board.”
1 Legislative History of the Labor Management Relations Act 545-46 (1948).
The second straw in the wind of legislative policy on this point is the inclusion in this statute, as finally enacted, of Section 301, providing judicial remedies for enforcement of labor contracts, which extend to specific performance of undertakings to arbitrate. See Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and United Steelworkers of America AFL-CIO v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). The availability of this alternative .argues potently for a high degree of circumspection on the part of the Board in treating of claims of contract violation. That cautionary discretion was exercised here, in the light of the testimony given, against equating the refusal to arbitrate with the refusal to bargain banned by 8(a) (5). We cannot say that the Board erred, either in its weighing of the relevant facts or in its disposition of the Union’s claim with respect to them.
The Board’s petition to enforce its order is granted; and the Union’s petition for review is denied.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_state
|
18
|
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".
Elizabeth Y. MILLS, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
No. 85-5945.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 8, 1986.
Decided Sept. 11, 1986.
Jon L. Fleischaker (argued), Kimberly K. Greene, Mark D. Wilson, Wyatt, Tarrant and Combs, Louisville, Ky., for defendant-appellant.
Frank E. Haddad, Harris J. Berman, (argued), Louisville, Ky., for plaintiff-appellee.
Before MARTIN and JONES, Circuit Judges, and COHN, District Court Judge.
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.
NATHANIEL R. JONES, Circuit Judge.
Defendant Ford Motor Company appeals from a district court judgment finding that it discriminated against the plaintiff on the basis of sex in violation of Title VII, 42 U.S.C. § 2000e et seq. (1982). The issue on appeal is whether the district court properly applied the test for determining whether an employer has intentionally discriminated. We find that it did and affirm the district court’s judgment.
Plaintiff Elizabeth Mills, a white female, was forty years old in 1977 when she was hired as a production supervisor in the body shop at Ford’s Louisville Assembly Plant. Based on her performance in the body shop she received an evaluation rating her overall performance as “very good.” Approximately three months after coming to Ford, she was transferred into the passenger division of the Trim Department as a line supervisor. When she was transferred there were approximately twenty male supervisors and no female supervisors in the department.
Ford evaluated the performance of its line supervisors on the following scale: Outstanding, Excellent, Satisfactory Plus, Satisfactory, Satisfactory Minus or Unsatisfactory. Mills received her first performance evaluation in October 1977. Her performance was rated as a “satisfactory plus,” but the evaluation did indicate certain deficiencies in the areas of quality, costs, housekeeping, safety glass program and production.
In November 1977, the Trim Department began operating on two shifts instead of one. Each shift was allotted the same number of jobs per hour. Meanwhile, in July 1978, Ford brought in new supervisory personnel to implement a major model change in its passenger cars. Lou Renfro was demoted from Superintendent to General Foreman. He was replaced as Superintendent by Larry Pickles. Mills testified that Pickles rarely discussed any problems in her department with her; rather if she had problems, Pickles would discuss them with a male foreman who was not in charge of her department. On August 21, 1978, she received a second performance evaluation, signed by Pickles, which gave her an overall rating of satisfactory. This evaluation also indicated that she had certain deficiencies.
Ford began suffering economic problems. On April 24, 1979, Ford announced that its night shift in the passenger division of the Trim Department would be eliminated in three weeks. The Trim Department only operated a total of fifty-two working days from January 1, 1979 until June 1, 1979. The day following Ford’s announcement that the second shift would be eliminated, Mills received a third evaluation. She was given a rating of unsatisfactory and was again considered deficient in the areas of costs, quality, production, housekeeping and safety. The evaluation further indicated that she would be given guidance and direction with a follow-up review in thirty days. Renfro, the General Foreman, and Pickles, the Superintendent, signed the evaluation.
From April 25, 1979 through June 1, 1979, Mills was on active duty as a supervisor for only seven days. She testified that she was given counseling for only five minutes during that period. A fourth and final evaluation of Mills was signed by Renfro and Pickles on June 1, 1979. Mills was again given an overall performance rating of unsatisfactory. The report indicated that Mills had received “continuous counseling and assistance for prolonged periods of time” and although she showed slight improvement, her performance remained far less than satisfactory. The report again criticized Mills’ performance in the areas of cost, quality, housekeeping and safety. It also recommended that Mills be terminated. That recommendation was reviewed by Ford’s Industrial Manager, Thomas Ryan, and by other Ford personnel in Dearborn, Michigan, and Mills was terminated sometime thereafter.
Ford had a policy where all supervisors who received two less than satisfactory performance ratings were terminated. In addition to Mills, five male production supervisors who received less than satisfactory performance ratings were also terminated.
Mills argued before the district court that the performance evaluations were completely fabricated and that she was terminated solely on the basis of her sex. The district court tried the case without a jury and agreed with Mills. Ford moved to reconsider the judgment on the ground that the district court improperly found sexual discrimination without requiring Mills to prove that there were similarly situated males who were treated differently. The district court vacated the original judgment and granted further discovery on the issue of comparable treatment. Following discovery, the district court again found that Mills suffered sexual discrimination and entered a judgment in her favor. She was awarded back pay in the amount of $100,-715.38, attorney’s fees, and reinstatement to her former position. Ford appeals from that judgment.
I.
A Title VII case of sexual discrimination must be analyzed under the three prong test articulated by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). A plaintiff carries the burden of establishing a prima facie case. 450 U.S. at 252-53, 101 S.Ct. at 1093-94. If she establishes a prima facie case, the defendant must then articulate a nondiscriminatory reason for its actions. Id. If the employer does this, the burden is again on the plaintiff to prove that the articulated reason was pretextual and not the true reason, either by showing that a discriminatory reason was the more likely motivation, or by showing that the articulated reason is unworthy of belief. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Grubb v. W.A. Foote Memorial Hospital, Inc., 741 F.2d 1486, 1493 (6th Cir.1984), vacated on other grounds 759 F.2d 546, cert. denied, — U.S. -, 106 S.Ct. 342, 88 L.Ed.2d 289 (1985); Grano v. Department of Development, 637 F.2d 1073, 1079 (6th Cir.1980). The plaintiff must ultimately prove that the defendant intentionally discriminated against her. 450 U.S. at 253, 101 S.Ct. at 1093.
Ford first challenges the district court’s finding that Mills established a prima facie case of discrimination. Specifically, it argues that Mills never produced evidence of similarly situated males who were retained. The district court, in its opinion, considered and compared the performance records of five male supervisors who were fired because of unsatisfactory evaluations. It found that the performance records of all five supervisors were objectively worse than Mill’s performance records. It also found that these supervisors received counseling before and after unsatisfactory reviews whereas Mills received, contrary to the information in the final performance evaluation, only five minutes of counseling. Ford does not vigorously dispute this finding but argues that records of these supervisors were not germane to the prima fa-cie analysis — only records of male supervisors with comparable work records who were not discharged, it argues, should be considered.
Ford submits that Mill’s prima facie case should be analyzed under the four step paradigm set forth in McDonnell Douglas. As that case dealt with a failure to hire claim rather than a discriminatory discharge claim, Ford admits that the only differing element in the paradigm is the fourth step. Ford suggests that the fourth element be adopted from other discriminatory discharge cases. Together, those four elements are:
1) that she belongs to a protected class,
2) that she was satisfactorily performing her job,
3) that despite this performance she was terminated, and
4) that she was replaced by a nonmi-nority or workers with comparable work records were retained while she was terminated.
(Emphasis added). See Grubb v. W.A. Foote, 741 F.2d at 1493; Wade v. New York Telephone Co., 500 F.Supp. 1170, 1174 (S.D.N.Y. 1980). See also Becton v. Detroit Terminal of Consolidated Freightways, 687 F.2d 140, 141 (6th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1432, 75 L.Ed.2d 791 (1983); Flowers v. Crouch Walker Corp., 552 F.2d 1277, 1281-82 (7th Cir.1977).
If the district court applied this prima facie test to this case in the manner suggested by Ford, Mills would be faced with an insurmountable burden. The bases for Mills’ complaint of discrimination were the evaluations signed by Renfro and Pickles. She claims her unsatisfactory performance ratings were not correct and were only given because she was a woman. If she must prove that other similarly situated supervisors who also received unsatisfactory ratings were retained, she is faced with the task of proving that Ford did not uniformly adhere to its policy of dismissing unsatisfactory performers. That is not the appropriate inquiry here. She is not arguing that Ford did not dismiss other line supervisors who received unsatisfactory performance evaluations; she is arguing that she never should have received unsatisfactory ratings in the first place and that Renfroe and Pickles possessed a discriminatory motive when giving Mills her evaluations.
We believe that the district court analyzed the prima facie case properly in this case. The district court did not consider the records of the five discharged males for the purpose of determining whether Mills established her prima facie case. It considered them only to show that Mills’ performance records were objectively better than those of the males discharged. In considering the prima facie case, the district court made specific reference to the fact that the supervisor on the second shift remained to do the same work previously done by Mills. There were also time sheets introduced into evidence that Mills had the same production level over a six month period as the supervisor on the second shift and used considerably less employee hours to do so. Moreover, there was evidence by lower-level employees that Mills was performing her job as well as or better than her male counterparts who were retained.
Contrary to Ford’s position, McDonnell Douglas does not require that the identical prima facie analysis be used in every discriminatory discharge case. As the Supreme Court has explained, the prima facie proof required by a plaintiff in a Title VII case may differ with each factual situation. Furnco Construction Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2948, 57 L.Ed.2d 957 (1978). See Beaven v. Commonwealth of Kentucky, 783 F.2d 672, 676 (6th Cir.1986). All the plaintiff must establish at the prima facie stage is that her discharge raised an inference of discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Time sheets and nonsupervisory testimony may ostensibly not be the ideal proof in establishing a prima fade case, but in this case they are enough to establish at least an inference of discrimination. We are ever mindful that the prima facie burden is not a heavy one, Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94, and the proof need not be conclusive.
II.
Once a plaintiff has established a prima facie case, the defendant must articulate a nondiscriminatory reason for the discharge. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. See West v. Fred Wright Construction Co., 756 F.2d 31, 33-34 (6th Cir.1985); Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984). Although the burden of production shifts to the defendant, the burden of persuasion always remains with the plaintiff. Jackson, 743 F.2d at 375. Ford contends that the district court not only required it to articulate a nondiscriminatory reason but also to prove that reason. Twice in the opinion, the district court stated that Ford articulated a legitimate, nondiscriminatory reason for Mills’ discharge and that Ford was entitled to rely on the performance evaluations as reason for the discharge. However, in its opinion, the district court made note of the fact that Mills was the only party to present evidence comparing the performances of supervisors on the different shifts. Additionally, it placed some significance on Ford’s decision not to produce Renfroe and Pickles as witnesses.
Ford relies on Brooks v. Ashtabula County Welfare Department, 717 F.2d 263 (6th Cir.1983), cert. denied, 466 U.S. 907, 104 S.Ct. 1687, 80 L.Ed.2d 160 (1984), where this court held that the district court erred when it rejected the defendant's articulated nondiscriminatory reason because the defendant offered no evidence to rebut the plaintiff’s prima facie case. The district court incorrectly placed the defendant with the burden of proving that it was motivated by the nondiscriminatory reasons in not promoting the plaintiff. Brooks is, however, factually different from the case here. In Brooks, the plaintiff offered no evidence to show that the defendant’s reasons were pretextual. Instead, the district court tested the defendant’s justification for its “credibility, veracity, and persuasiveness” independent of the plaintiffs inability to produce proper evidence. In this case, Mills did present her own evidence in the third stage that was weighed by the district court.
Whatever significance is attached to the district court’s reference to Ford’s decision not to produce certain evidence, we believe it has no bearing on the district court’s acceptance of Ford’s articulated nondiscriminatory reason for Mills’ discharge. The district court stated quite clearly that Ford had produced a legitimate nondiscriminatory reason. Any references to the defendant’s lack of proof were simply additional evidentiary factors considered in evaluating whether that nondiscriminatory reason was pretext. Given that Mills did present evidence of pretext, the district court was permitted to place some weight on Ford’s failure to present evidence and call Renfroe and Pickles as witnesses in the third stage of the Title VII analysis.
III.
The district court observed that the question of whether Ford’s proffered nondiscriminatory reasons for discharge were pretextual was a close one. In concluding that Mills proved her claim of sexual discrimination, the district court did not rely on any one fact as determinative but weighed a number of facts in deciding in favor of Mills. It based its decision on the following offers of proof: 1) employees testified that Mills performed her job in a satisfactory manner; 2) Mills received virtually no counseling, and Renfroe and Pickles paid very little attention to her and; 3) time sheets showed Mills was performing her job with substantially less employee hours than her male counterparts.
One former supervisor on the second shift, James Railes, testified that Mills’ problems with clean-up or safety glasses were no different than the problems he had. Assuming each supervisor was rated on substantially the same relative criteria, this testimony tends to indicate that Mills’ problems in the area of housekeeping and safety were no different than any other supervisor and based on a relative scale should not have formed the basis for an unsatisfactory review. A number of other employees also testified that Mills enforced the safety rules and maintained her area as cleanly as any other supervisor. The significance of the testimony of these employees would be lessened had there been evidence that Renfroe and Pickles spent any time with Mills observing her performance. To the contrary, there was evidence that Pickles rarely came to Mills’ area and never discussed matters with her. Moreover, there was evidence that Renfroe paid very little attention to Mills. It is true that these employees may not have been in the best position to evaluate Mills’ performance. But given the evidence concerning the lack of attention paid to Mills by the proper supervisory personnel, there was good reason for the district court to give considerable weight to the employees’ testimony.
The district court also accorded significant weight to the time sheets introduced by Mills comparing the employee hours used by the supervisors on each shift. It acknowledged that there was a problem with this proof because there are a number of variables affecting production besides employee hours. These variables include “availability of materials, mix of units, volume of the day, use of equipment, and number of available hourly employees,” which may be different on each shift. Even assuming this to be true, Ford does not argue that lower employee hours are something it does not encourage, and thus they can be viewed as a factor in assessing production performance. We agree with the district court that this proof, although not perfect, has some degree of probative value.
The ultimate question, of course, is whether the district court was clearly erroneous in relying on this evidence as proving that Ford’s reasons for discharge were pre-textual. Evaluated independently, each of these offers of proof is not dispositive of the ultimate issue of whether Ford intentionally discriminated against Mills on the basis of sex when it discharged her. However, we cannot say that when viewing the evidence as a whole, the district court was clearly erroneous in finding that Ford possessed discriminatory motives when discharging Mills.
The judgment of the district court is, therefore, AFFIRMED.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_lcdispositiondirection
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. PIONEER AMERICAN INSURANCE CO. et al.
No. 405.
Argued April 17, 1963.
Decided June 10, 1963.
Richard M. Roberts argued the cause for the United States. On the brief were Solicitor General Cox, Acting Assistant Attorney General Jones, Daniel M. Friedman, Joseph Kovner and George F. Lynch.
Owen C. Pearce argued the cause for respondents. With him on the brief was Marcus Ginsburg.
H. Cecil Kilpatrick, Samuel E. Neel and William F. McKenna filed a brief for the Mortgage Bankers Association of America et al., as amici curiae, urging affirmance.
Mr. Justice White
delivered the opinion of the Court.
The United States has sought review of a decision of the Supreme Court of Arkansas subordinating the federal tax lien (26 U. S. C. § 6321) to a lien for attorney’s fees included in an antecedent mortgage contract. 235 Ark. 267, 357 S. W. 2d 653: Because of conflict between the Arkansas decision and United States v. Bond, 279 F. 2d 837 (C. A. 4th Cir.); In re New Haven Clock & Watch Co., 253 F. 2d 577 (C. A. 2d Cir.), we granted certiorari. 371 U. S. 909.
When the taxpayers in 1958 acquired their -interest in the parcel of real estate involved hete, they assumed liability on a note and the deed of trust (first mortgage) securing it, which were held by respondent Pioneer American Insurance Company. The note obligated taxpayers “in the event of default herein and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings, to pay a reasonable attorney’s fee.” The taxpayers at the same time executed a note and second mortgage to their vendor, respondent The Development Company, and subsequently, in April 1960, the real estáte became burdened again with a mechanic’s' lien in favor of Alfred J. Anderson.
In October of 1960, taxpayers defaulted on the first mortgage monthly installment and failed thereafter to meet payments as they fell due. On March 24, 1961, Pioneer American filed a suit to foreclose its mortgage and sought, in addition to the principal and interest, a reasonable attorney’s fee. The United States was named a party defendant because of two outstanding federal tax liens against the taxpayers which were filed on November 29, 1960, and January 30, 1961. The United States admitted its liens were subordinate to the principal and interest on the first and second mortgages but claimed that the liens were superior to the claim for the- attorney’s fee. Three additional federal tax liens subsequently were filed on April 14, July 17, and October 3, 1961.
On November 15,1961, the Chancery Court entered its decree of foreclosure which fixed the attorney’s fee at $1,250 and determined the priority of the various claimants. After satisfaction of court and foreclosure sale costs, Pioneer American was -accorded first priority for principal, interest and the attorney’s fee; The Development Company took next on principal and interest under the second mortgage; Alfred J. Anderson shared thereafter on his mechanic’s lien and the United States took last. The property was sold and proceeds were received which satisfied all claims except $3,615.28 of the federal tax liens. The United States appealed to the Supreme Court of Arkansas asserting that it was entitled to priority over the attorney’s fees, and that $1,250 more should have been applied to reduce the unpaid federal taxes. With one judge dissenting, the Arkansas court rejected that contention and sustained the superiority of the claim for the attorney’s fee.
It goes unchallenged that the claim for the attorney’s fee, arising out of the obligations assumed by the taxpayer in 1958, became enforceable under Arkanas law as a contract of indemnity at the time of default in October 1960 before the filing of the first federal tax liens. Furthermore, it is evident that the suit in which this attorney’s fee was earned was commenced on March 24, 1961, prior to the filing of the unpaid federal tax liens crucial to this suit, i. e., the liens of April 14, July 17, and October 3, 1961. Nevertheless, because this fee had not been incurred and paid and could not be finally fixed in amount until November 15, 1961, after all the federal liens had been filed, we hold that the claim for attorney’s fees remained inchoate at least until that date and that the federal tax liens are entitled to priority.
The priority of the federal tax lien provided by 26 U. S. C. § 6321 as against liens created under state law is governed by the common-law rule — “the first in time is the first in right.” United States v. New Britain, 347 U. S. 81, 85-86. It is critical, therefore, to determine when competing liens, whether federal or state-created, come into existence or become valid for the purpose of the rule.
The tax lien arises, according to § 6322, when the tax is assessed, but as against the specific interests mentioned in § 6323 (a) — mortgagees, pledgees, purchasers and judgment creditors — it is not valid until placed of public record, and insofar as the federal lien attaches to securities, mortgagees, pledgees and purchasers must have actual notice of the lien. § 6323 (c).
As for. a lien created by state law, its priority depends “on the time it attached to the property in question and became choate.” United States v. New Britain, supra, at 86; United States v. Security Tr. & Sav. Bank, 340 U. S. 47. Choate state-created liens take priority over later federal tax liens, United States v. New Britain, supra; Crest Finance Co. v. United States, 368 U. S. 347, while inchoate liens do not. See United States v. Liverpool & London Ins. Co., 348 U. S. 215; United States v. Scovil, 348 U. S. 218; United States v. Colotta, 350 U. S. 808. And it is a matter of federal law when such a lien has acquired sufficient substance and has become so perfected as to defeat a later-arising or later-filed federal tax lien. “Otherwise, a State could affect the standing of federal liens, contrary to the established.doctrine, simply by causing an inchoate lien to attach at some arbitrary time even before the amount of the tax, assessment, etc., is determined.” United States v. New Britain, supra, at 86. The federal rule is that liens are “perfected in the sense that there is nothing more to be done to have a choate lien — when the identity of the lienor, the property subject to the lien, and the amount of the lien are established.” Id., at 84.
We reject respondents’ contention that the choateness rule has no place when a mortgage under § 6323 (a) involved. The predecessor to § 6323 was first enacted by Congress in 1912 in order to protect' mortgagees, purchasers and judgment creditors against a secret lien for assessed taxes and to postpone the effectiveness of the tax, lien as against these interests until the tax lien was filed. H. R. Rep. No. 1018, 62d Cong., 2d Sess. The section dealt with the federal lien only and it did not purport to affect the time at which- local liens were deemed to arisé or to become choate or to subordinate the tax lien to tentative, conditional or imperfect state" liens. Rather, we believe Congress intended that if out of the whole spectrum of state^created liens,, certain liens áre tó enjoy the preferred status granted by § 6323, they should at least have attained the degree of perfection required of other liens and be choate for the purposes of the federal rule.
The Court has never held that mortgagees face a less demanding test of perfection than other interests when competing with the federal lien. Indeed United States v. Ball Constr. Co., 355 U. S. 587, stands for just the contrary. There the state law creditor, assérting that the assignment under which he claimed was a mortgage within the predecessor to § 6323, insisted upon priority over the federal lien by virtue of the previously executed assignment. A majority of the Court, although not expressly declaring the assignment to be a mortgage, held that § 6323 (a) afforded the creditor no protection since his interest was “inchoate and unperfected.” The four dissenters thought the assignment was a mortgage and that it was “completely perfected” and “in all respects choate.” While disagreeing on the choateness of the particular assignment involved there, the Court was unanimous in applying the choateness test to those seeking the protection of § 6323 (a). We follow that lead here and therefore proceed to measure against the rule the choateness of the mortgagee’s lien for reasonable attorney’s fees before us.
Clearly the identity of the lienholder and the property subject to the lien are definite here, but it 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 and 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.
Ball once again provides a parallel. Sums due the contractor-taxpayer under a particular construction contract were assigned to the surety as security for any future indebtedness of the contractor to the surety arising under that contract or any other. After the filing of the federal tax lien against the contractor, the surety made advances to complete another contract of the taxpayer, as the surety was obligated to do under its bond issued on that contract, and the taxpayer thereby became indebted to the surety. The majority held the surety’s interest “inchoate and unperfected” at the time of the filing of the federal tax liens. Ball therefore rejects as inchoate an assignee’s or mortgagee’s lien to secure future indebtedness of the taxpayer-debtor. The creditor holds merely “a caveat of a more perfect lien to come.” New York v. Maclay, 288 U. S. 290, 294. Likewise, when a mortgagee has a lien for an attorney’s fee which is uncertain in amount and yet to be incurred and paid, such a lien is inchoate and is subordinate to the intervening federal tax-lien filed before the mortgagee’s lien for the attorney’s fee matures.
But, it is said, the principal and interest of the mortgage were definite in amount, the attorney’s fee later became certain by court order and if the tax lien were to prevail the preference of .the mortgagee given by § 6323 will be frustrated since payment of the attorney’s fee will reduce the net amount realized from the mortgage. Aside from the fact that the mortgagee here will experience no such reduction, this argument would subordinate federal tax liens to inchoate liens and in both United States v. New Britain, supra, and United States v. Buffalo Savings Bank, 371 U. S. 228, the Court denied priority to local tax liens which were imperfect when the federal tax lien was filed even though the former had priority over the mortgage and would reduce the recovery of the mortgagee.
The court below was in error and its judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Douglas dissents.
The deed of trust provided, in addition:
“That if either the party of the sécond part [trustee] or the party of the first part [mortgagor] shall become a party to any suit or proceeding at law or in equity in reference to its interest in the premises herein conveyed, the reasonable costs, charges and attorney’s fees in such suit or proceeding shall be added to 4he principal sum then owing by the party of the first part and shall be secured by this instrument, and the note secured hereby shall, at the option of the holder, become due and collectible.
. . . . .
“The proceeds of any sale under this deed of trust shall be applied ... as follows:
“First: To-pay the costs and expenses of executing this trust, and any and all sums expended on account of costs of litigation, attorney’s.fees, ground rents, taxes, insurance premiums, or any advances made or expenses incurred on account of the property sold, with interest thereon.
“Second: To retain as compensation, a commission as set forth by the laws of the State of Arkansas.
“Third: To pay off the debt secured hereby, including accrued interest thereon, as well as any other sums owing . . . pursuant to this instrument.”
The federal tax liens, as of the date of the order of distribution, November 15, 1961, were as follows:
Lien of November 29, 1960.........;............ $659.67
Lien of January 30,1961........................ 1,661.03
Lien of April 14,1961.......................... 1,344.69
Lien of July 17, 1961.......................... 1,653.23
Lien of October 3, 1961........................ 1,164.04
The first two liens, November 29, 1960, and January 30, 1961, were satisfied in full. $546.68 was available for partial payment of the April 14, 1961, lien. The balance of the April lien and the full amounts of the July 17 and October 3, 1961, liens remained unsatisfied.
The United States did not challenge the priority of the mechanic’s, lien or of any other distribution fixed by the decree.
Once the attorney’s fee is subordinated to the federal tax liens, the $1,250 would be borne by the other claimants in order of seniority among themselves under state law. On the basis of the present decree, the share of the mechanic’s lienor Anderson would be eliminated and that of the second mortgagee, The Development Company, reduced by half.
“While it is true that the filing of the notice of the tax lien may constitute notice in the case of real property, it is inequitable for the statute to provide that it constitutes notice as regards securities.' For example, when a broker purchases a security for his customer on the exchange, it is obviously impossible for him to check all the offices in which a notice of the tax lien may be duly filed to determine whether the security is subject to such lien.' A like situation exists with respect to over-the-counter and' direct transactions in securities. An attempt to enforce such liens' on recorded notice would in many cases impair the negotiability of securities and seriously interfere with business transactions. The adoption of the amendment will remove an existing hardship without causing any undue loss of revenue.” H. R. Rep. No. 855, 76th Cong., 1st Sess. 26 (1939).
“The effect of a lien in relation to a provision of federal law for the collection of debts owing the United States is always a federal question. Hence, although a state court’s classification of a lien as specific and perfected is entitled to weight, it is subject to reexamination by this Court.” United States v. Security Tr. & Sav. Bank, 340 U. S. 47, 49-50; see also, United States v. Acri, 348 U. S. 211; United States v. Vorreiter, 355 U. S. 15. Thus the fact that, under Arkansas law, the claim for attorney’s fees becomes enforceable upon default as a contract of .indemnity does not foreclose inquiry by this Court into the degree the claim is choate at that time.
There is nothing in Security Mortgage Co. v. Powers, 278 U. S. 149, which compels us to hold the lien choate, since the issue there was the status of an attorney’s' fee clause, fixed in amount, in bankruptcy proceedings where the rigorous federal lien choateness test was not necessarily applicable.
Contrast Crest Finance Co. v. United States, 368 U. S. 347, where the assignment and the'loans were consummated prior to.the accrual and filing of the federal tax liens.
See in accord, with respect to attorney’s fees, United States v. Bond, 279 F. 2d 837 (C. A. 4th Cir.); In re New Haven Clock & Watch Co., 253 F. 2d 577 (C. A. 2d Cir.); Bank of America v. Embry, 188 Cal. App. 2d 425,10 Cal. Rptr. 602; with respect to payments of subsequently attaching local taxes, United States v. Bond, supra; United States v. Christensen, 269 F. 2d 624 (C. A. 9th Cir.); and with respect to future advance clause transactions, American Surety Co. v. Sundberg, 58 Wash. 2d 337, 363 P. 2d 99; Rev. Rule 56-41, 1956-1 Cum. Bull. 562; cf. United States v. Peoples Bank, 197 P. 2d 898 (C. A. 5th Cir.); Hoare v. United States, 294 F. 2d 823 (C. A. 9th Cir.).
This argument would require us to revitalize the long since rejected relation-back doctrine. See United States v. Security Tr. & Sav. Bank, 340 U. S. 47, 50.
See note 5, supra.
By the same token respondents’ contention that the rules against “unjust enrichment” are violated by preferring the tax lien to the claim for attorney’s fees is without merit. Both New Britain and Buffalo Savings Bank prefer the federal lien even though the mortgagee’s interest in the proceeds will be reduced by later-arising local taxes having priority under state law over the mortgagee. The attorney’s services, moreover, were rendered for the benefit of the mortgagee to protect his interest in .the property, and the United States, holding an adverse interest, received no such benefit from them that its interest is to be charged-therefor.
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_casetyp1_7-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
QUINN, County Assessor, et al. v. AERO SERVICES, Inc.
No. 11907.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1949.
Rehearing Denied March 14, 1919.
Harold W. Kennedy, County Counsel, and Andrew O. Porter and James A. Co-bey, Deputies County Counsel, Los Angeles County, all of Los Angeles, Cal., for appellant.
Francis B. Cobb, -of Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY and BONE, Circuit Judges.
STEPHENS, Circuit Judge.
Quinn and Byram, County Tax Officers, appeal from the order of the bankruptcy court affirming its jurisdiction under Section 64, sub. a of the Bankruptcy Act, 60 Stat. 330, 11 U.S.C.A. § 104, sub. a(4), to redetermine the assessed valuation made by the County Board of Equalization of the bankrupt’s personalty for county property tax purposes. The bankruptcy court was entertaining a petition for the reorganization of Aero Services, Inc., under the bankruptcy law. For convenience, we sometimes refer to petitioner as “Aero” and, notwithstanding a petitioner in a reorganization proceeding is not strictly speaking a bankrupt, we sometimes refer to petitioner herein as the “bankrupt”.
Aero Services, Inc., owned the taxed personalty and also certain .real property, all situated in the county of Los Angeles, on the first Monday in March which is the tax and lien date in California. Calif.Rev. & Tax Code, Sections 405, 2192, 117, 2189. A verified declaration of the property for tax purposes was made and filed with the County Assessor on May 14, 1946, showing the estimated taxable value of the personalty as of the first Monday in March, 1946. Soon thereafter and prior to the first Monday in July, 1946, the County Assessor fixed the value of the personalty at the estimated figure of the declaration, $355,710.
Aero Services, Inc. initiated the reorganization proceedings on June 3, 1946, by filing its petition under Section 322 of Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 722. Aero was authorized to retain possession of the property. On July 1, 1946, the County Board of Equalization commenced its review of all assessments within the county for purposes of correcting any errors of the County Assessor and for purposes of equalizing the assessments. Neither Aero nor anyone for Aero took advantage of the law giving the owner of property the right to file an application, or appear at the public hearings before the Board to request a reduction in or a redetermination as to the personalty assessment. A tax bill was sent Aero based upon the assessment and the tax, in accord therewith, became due on November 1, 1946, and delinquent on December 5, 1946. On December 6, 1946, Aero filed a petition praying that an .order be made requiring the County Assessor and the County Tax Collector to show cause why the bankruptcy court should not redetermine the tax assessment value of the personalty, claiming the assessment to be grossly excessive.' The order issued and the county officers responded by objecting
to the jurisdiction of the bankruptcy court. The referee, after a hearing, overruled the objections and the bankruptcy court affirmed the order.
The issue is whether the bankruptcy court had' jurisdiction to redetermine the assessed valuation of the bankrupt’s personalty for county tax purposes and to fix the tax accordingly.
The bankruptcy court resolved the issue of its jurisdiction in the affirmative, upon its interpretation of Section 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4), which we quote in part: “* * * In case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court”.
The court cited Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, in which the judge discusses Arkansas Corporation
Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244, and states that in his opinion the effect of the Arkansas-Thompson case is to “restrict the court to* finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body [emphasis ours] in setting, after due hearing, a valuation of property for tax purposes.” The bankruptcy court felt that the real basis of the Arkansas-Thompson decision was that the Arkansas commission, with the bankruptcy trustee participating in the proceeding, acted in a quasi-judicial capacity in settling the tax. The trustee not having appealed, and the state tax proceedings having been concluded prior to the bankruptcy, the determination had become res judicata. In re Monongahela Rye Liquors, Inc., et al., 3 Cir., 141 F.2d 864, was relied upon.
The court, in our case, concluded [75 F. Supp. 347, 353] : “In the instant case the time for objection to the assessmént before the Board of Equalization had not expired at the time of' the within bankruptcy proceeding. There had been no hearing, finding or final order on the tax at the time of bankruptcy and it therefore appears that the determination of the amount of tax may be had in those pending bankruptcy proceedings, and accordingly this Court determines that the objection to the jurisdiction should be overruled.”
It is implicit in the bankruptcy court’s comment upon the Arkansas-Thompson case that that court was of the opinion that some phase of an adversary appellate hearing must have been held, with the taxpayer participating, before the bankruptcy court is precluded from exercising the power to reassess the property and finally fix a tax. That is, res judicata depends upon the participation of the taxpayer in a hearing before the Board of Equalization or at least this is so when the bankruptcy proceedings have been initiated before the assessment .has been finally determined by the Board.
Appellant thinks the Arkansas-Thompson case cannot be construed so broadly. He thinks the point controlling in the cited case is that an assessment is res judicata after a judicial review of the administrative act, whether or not the taxpayer has actually appeared, if, in fact, there is provision in the law for such review and the taxpayer has had a full right to appear and participate in such review. If by choice he does not avail himself of it, the assessment is final. We think the latter construction the correct one under Arkansas v. Thompson, supra, and as well, Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, at 578, 579, 67 S.Ct. 467, 91 L.Ed. 504.
In our opinion, the applicable procedure adopted for assessment of property taxes in California constitutes a quasi-j udicial determination. The assessment procedure functions from March to July and in .some cases into August. Between the first Mondays in the months of March and July the County Assessor is required to ascertain and assess all taxable property within his jurisdiction as of the first Monday in March. Sec. 405. Between the first Monday in March and the last Monday in June each taxpayer is required to file with the County Assessor a verified declaration of his taxable property. Sec. 441. In addition, the County Assessor is authorized to subpoena and examine any taxpayer with respect to any statement disclosing taxable property. Sec. 454. Upon completion of the assessment roll on or before the first Monday in July, by the assessor, he delivers it to the County Board of Equalization. Secs. 616, 617. The County Board of Equalization, upon receipt of the roll, gives legal notice by publication of the roll’s completion and the time at which the board will meet to equalize assessments. Sec. 1601. Taxpayers desiring changes in their assessments must, either in person or by an agent, file verified written applications for such changes, setting forth the supporting facts. Applicants may be present at stated hearing and must be examined under oath by the Board concerning the value of their property, if they so desire. Secs. 1607, 1608. The Board may, in the course of its hearing of any application, subpoena witnesses and take evidence and the Assessor and his deputies must be present to present evidence as needed. Secs. 1609, 1610. The session of the Board commences on the first Monday in July and continues not later than the third Monday in July. Sec. 1603. For the purpose of equalizing assessments the Board may increase or decrease individual assessments. Sec. 1605. Following the close of the Board’s session the corrected assessment roll is delivered to the County Auditor for totaling of the valuations thereon. Secs. 1614, 1646.
We think the procedure just outlined provides for a valid and constitutional determination, quasi-judicial in nature, whether or not the taxpayer petitions for a redetermination and whether or not he appears. We also think the fact that the reorganization proceeding antedated the Board of Equalization’s hearings is of no consequence. See Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 710, 4 S.Ct. 663, 28 L.Ed. 569. The bankruptcy court in its opinion correctly stated the law, though it did not follow it, where it said: “The minimum requirement apparently would be a determination by a quasi-judicial body in conjunction with a quasi-judicial hearing, or at least the right to such hearing.” See Commonwealth of Pennsylvania v. Aylward, 8 Cir., 154 F.2d 714; Luce v. City of San Diego, 198 Cal. 405, 245 P, 196; Dawson v. Los Angeles County, 15 Cal.2d 77, 81, 98 P.2d 495. The facts present a situation comparable to a judgment by default, one which is a proper basis for a plea of res judicata and estoppel. In re Jacobson’s Guardianship, 30 Cal.2d 326, 334, 182 P.2d 545; Fitzgerald v. Herzer, 78 Cal.App.2d 127, 131, 132, 177 P.2d 364,
In People v. Goldtree, 44 Cal. 323, 325, the court holds that “ * * * The Board of Equalization, in passing on the question whether an assessment is too high or too low, acts in a judicial capacity, and its decision is an adjudication, and as clearly so as a judgment for the recovery of a tax * * * In Los Angeles Gas & Electric Co. v. County of Los Angeles, 162 Cal. 164, 121 P. 384, 386, 9 A.L.R. 1277, the function of the Board is again discussed: “ * * * Upon such hearing, it is the duty of such board to determine the value of the property under consideration for assessment purposes upon such basis as is used in regard to other property, so as to make all the assessments as equal and fair as is practicable. In discharging these duties, the board is exercising judicial functions, and its decision as to the value of the property and the fairness of the assessment, so far as amount is concerned, constitutes an independent and conclusive judgment of the tribunal created by law for the determination of that question, which abrogates and takes the place of the judgment of the assessor, upon that question. * * * ”
When the Board, sitting as a Board of Equalization, determined the assessment in question, it became final and conclusive. The recent case of Universal Consolidated Oil Co. et al. v. Byram, County Tax Collector, 25 Cal.2d 353, 362, 153 P.2d 746, 751, supports this view: “* * * As appears from the numerous authorities cited in the forepart of this opinion, the respective county board of equalization is the fact-finding body designated by law to remedy excessive assessments (Cal.Const, art. XIII, § 9), and when that tribunal, after due hearing and within the limits of reasonable discretion, makes its findings on the facts, such decision is final and conclusive. * * * ” And in Los Angeles Gas & Electric Co. v. County of Los Angeles, supra, “ * * * The law necessarily leaves the determination of the question of fact of value to certain officers, and when it appoints tribunals for that purpose, as in this state primarily the assessor, and, for purpose of review, the board of supervisors, acting as a county board of equalization, the conclusion of those tribunals on such a question of fact constitutes a judgment that is not collaterally assailable in the courts. This is the universal rule, and it has been so held in this state.”
It is suggested that our case is ruled by State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, but the difference which is pointed out in our quotation from the Arkansas-Thompson case in note 1 applies to our case as well. That is, in Arkansas-Thompson and our case there is provision for a quasi-judicial hearing whereas in New Jersey v. Anderson there is not. See In re Ingersoll Co., 10 Cir., 148 F.2d 282.
The bankruptcy court erred in not dismissing the petition for redetermination, and the proceeding is remanded with instruction to dismiss the petition for redetermination in accord with this opinion.
Reversed and remanded.
Arkansas Corporation Commissioner, et al. v. Thompson, Trustee, 313 U.S. 132, 61 S.Ct. 888, 891, 85 L.Ed. 1244, concerned the matter of taxes of a railroad under reorganization as provided for in § 77, Bankruptcy Act of 1933, 11 U.S. C.A. § 205. No appeal, as provided for by tile state statute, was taken to the state court and time for appeal lapsed. The bankruptcy court was then petitioned to redetermino the assessment under authority of § 64, sub. a (4) Bankruptcy Act. In the course of the court’s opinion it is said: “ * * * indicates that taxpayers in bankruptcy or reorganization are intended to have the extraordinary privilege of two separate trials, one state and one federal, on an identical issue of controverted fact — the value of the property taxed. Manifestly, whether or not taxes are ‘legally due and owing’ to a state depends upon the valid laws of that state. Ad valorem taxes depends upon a determination of value. The governmental function of fixing the value for tax purposes has rarely, if ever, been a judicial function. Tlie ‘legality’ of the action of Arkansas in entrusting the determination of value to its Corporation Commission is not challenged here, as of course it could not be. If the Commission properly found the value of the property, the ‘amount’ of the taxes is not in question. For it is not asserted that the Commission made an improper arithmetical computation in applying the legal tax rate to the determined property value. It is in this respect, as well as with regard to the dissimilar duties and functions of the state administrative agencies involved, that this case differs from that of [State of] New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284, upon which the trustee here strongly relies.” See also Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, and Kelly v. United States, 9 Cir., 90 F.2d 73, 76.
Quoting from 141 F.2d at page 868 of the In re Monongahela case: “The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in tht, computation of amount of the tax or legal error in its assessment. * * * The question in any instance, therefore, is whether the circumstances necessary to justify an exorcise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a return, the tax assessments against it were based upon estimated ‘settlements’ arbitrarily mad#* by the State’s* Department of Revenue without hearing the taxpayer. The pertinent Pennsylvania statute, viz., the Fiscal Code of 1929, P.L. 343, as amended by the Act of February 2, 1937, P.L. 3, 72 P.S. §§ 1-1804, provides that, in case a taxpayer fails to file timely a report necessary to enable the Department of Revenue to settle a tax, the Department may make an estimated settlement wherein a fifty per cent penalty is included (§ 804). From any estimated settlement no right to review or appeal is allowed. * * * For the most part, the tax claims in the instant case are based upon such estimated settlements. We think it is plain that the referee’s hearing and determination of the amount of tax actually due did not involve a second trial of a controverted fact, such as the exercise' of the power en tailed in the Thompson- ease. We are, therefore, of the opinion that, under the circumstances tere shown, the rule of the Anderson case is applicable and that the referee’s redetermination of the Commonwealth’s tax claims was a justifiable exercise of bankruptcy’s power.”
All statutory citations by numbers only are to the California Revenue and Taxation Code.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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sc_casesource
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030
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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.
HILLSBOROUGH COUNTY, FLORIDA, et al. v. AUTOMATED MEDICAL LABORATORIES, INC.
No. 83-1925.
Argued April 16, 1985
Decided June 3, 1985
MARSHALL, J., delivered the opinion for a unanimous Court.
Emetine C. Acton argued the cause for appellants. With her on the briefs was Joe Horn Mount.
Paul J. Larkin, Jr., argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and Margaret E. Clark.
Larry A. Stumpf argued the cause for appellee. With him on the brief was Victoria L. Baden.
Richard Landfield argued the cause for the American Blood Resources Association et al. as amici curiae urging affirmance. With him on the brief was William W. Becker.
Benjamin W. Heineman, Jr., filed a brief for the National Association of Counties et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Blood Commission by Michael H. Cardozo; and for Grocery Manufacturers of America, Inc., by Peter Barton Hutt.
Justice Marshall
delivered the opinion of the Court.
The question presented is whether the federal regulations governing the collection of blood plasma from paid donors pre-empt certain local ordinances.
t — I
Appellee Automated Medical Laboratories, Inc., is a Florida corporation that operates, through subsidiaries, eight blood plasma centers in the United States. One of the centers, Tampa Plasma Corporation (TPC), is located in Hillsborough County, Florida. Appellee’s plasma centers collect blood plasma from donors by employing a procedure called plasmapheresis. Under this procedure, whole blood removed from the donor is separated into plasma and other components, and “at least the red blood cells are returned to the donor,” 21 CFR § 606.3(e) (1984). Appellee sells the plasma to pharmaceutical manufacturers.
Vendors of blood products, such as TPC, are subject to federal supervision. Under § 351(a) of the Public Health Service Act, 58 Stat. 702, as amended, 42 U. S. C. § 262(a), such vendors must be licensed by the Secretary of Health and Human Services (HHS). Licenses are issued only on a showing that the vendor’s establishment and blood products meet certain safety, purity, and potency standards established by the Secretary. 42 U. S. C. § 262(d). HHS is authorized to inspect such establishments for compliance. § 262(c).
Pursuant to § 351 of the Act, the Food and Drug Administration (FDA), as the designee of the Secretary, has established standards for the collection of plasma. 21 CFR §§640.60-640.76 (1984). The regulations require that a licensed physician determine the suitability of a donor before the first donation and thereafter at subsequent intervals of no longer than one year. § 640.63(b)(1). A physician must also inform the donor of the hazards of the procedure and obtain the donor’s consent, §640.61, and must be on the premises when the procedure is performed, §640.62. In addition, the regulations establish minimum standards for donor eligibility, §§640.63(c)-(d), specify procedures that must be followed in performing plasmapheresis, § 640.65, and impose labeling requirements, §640.70.
In 1980, Hillsborough County adopted Ordinances 80-11 and 80-12. Ordinance 80-11 imposes a $225 license fee on plasmapheresis centers within the county. It also requires such centers to allow the County Health Department “reasonable and continuing access” to their premises for inspection purposes, and to furnish information deemed relevant by the Department. See App. 21-23.
Ordinance 80-12 establishes a countywide identification system, which requires all potential donors to obtain from the County Health Department an identification card, valid for six months, that may be used only at the plasmapheresis center specified on the card. The ordinance incorporates by reference the FDA’s blood plasma regulations, but also imposes donor testing and recordkeeping requirements beyond those contained in the federal regulations. Specifically, the ordinance requires that donors be tested for hepatitis prior to registration, that they donate at only one center, and that they be given a breath analysis for alcohol content before each plasma donation. See id., at 24-31.
The county has promulgated regulations to implement Ordinance 80-12. The regulations set the fee for the issuance of an identification card to a blood donor at $2. They also establish that plasma centers must pay the county a fee of $1 for each plasmapheresis procedure performed. See id., at 32-34.
In December 1981, appellee filed suit in the United States District Court for the Middle District of Florida, challenging the constitutionality of the ordinances and their implementing regulations. Appellee argued primarily that the ordinances violated the Supremacy Clause, the Commerce Clause, and the Fourteenth Amendment’s Equal Protection Clause. Ap-pellee sought a declaration that the ordinances were unlawful and a permanent injunction against their enforcement. Id., at 5-20.
In November 1982, following a bench trial, the District Court upheld all portions of the local ordinances and regulations except the requirement that donors be subject to a breath-analysis test. Id., at 40-46. The court rejected the Supremacy Clause challenge, discerning no evidence of federal intent to pre-empt the whole field of plasmapheresis regulation and finding no conflict between the Hillsborough County ordinances and the federal regulations.
In addition, the District Court rejected the claim that the ordinances violate the Equal Protection Clause because they regulate only centers that pay donors for plasma, and not centers in which volunteers donate whole blood. The court identified a rational basis for the distinction: paid donors sell plasma more frequently than volunteers donate whole blood, and paid donors have a higher rate of hepatitis than do volunteer donors.
Finally, the District Court found that, with one exception, the ordinances do not impermissibly burden interstate commerce. It concluded that the breath-analysis requirement would impose a large burden on plasma centers by forcing them to purchase fairly expensive testing equipment, and was not shown to achieve any purpose not adequately served by the subjective evaluations of sobriety already required by the federal regulations.
Automated Medical Laboratories appealed to the Court of Appeals for the Eleventh Circuit, which affirmed in part and reversed in part. 722 F. 2d 1526 (1984). The Court of Appeals held that the FDA’s blood plasma regulations pre-empt all provisions of the county’s ordinances and regulations. The court acknowledged the absence of an express indication of congressional intent to pre-empt. Relying on the pervasiveness of the FDA’s regulations and on the dominance of the federal interest in plasma regulation, however, it found an implicit intent to pre-empt state and local laws on that subject. In addition, the court found a serious danger of conflict between the FDA regulations and the Hillsborough County ordinances, reasoning that “[i]f the County scheme remains in effect, the national blood policy of promoting uniformity and guaranteeing a continued supply of healthy donors will be adversely affected.” Id., at 1533.
The Court of Appeals thus affirmed, albeit on other grounds, the District Court’s invalidation of the breath-analysis requirement. It reversed the District Court’s judgment upholding the remaining requirements of the Hillsborough County ordinances and regulations. In view of its decision, the court did not reach the Commerce Clause and Equal Protection challenges to the county’s scheme. Ibid.
Hillsborough County and the County Health Department appealed to this Court pursuant to 28 U. S. C. § 1254(2). We noted probable jurisdiction, 469 U. S. 1156 (1984), and we now reverse.
I — I I — I
It is a familiar and well-established principle that the Supremacy Clause, U. S. Const., Art. VI, cl. 2, invalidates state laws that “interfere with, or are contrary to,” federal law. Gibbons v. Ogden, 9 Wheat. 1, 211 (1824) (Marshall, C. J.). Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). In the absence of express pre-emptive language, Congress’ intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Pre-emption of a whole field also will be inferred where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Ibid.; see Hines v. Davidowitz, 312 U. S. 52 (1941).
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, supra, at 67. See generally Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 698-699 (1984).
We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes. See, e. g., Capital Cities Cable, Inc. v. Crisp, supra, at 699; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153-154 (1982); United States v. Shimer, 367 U. S. 374, 381-383 (1961). Also, for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624 (1973).
I — i HH
In arguing that the Hillsborough County ordinances and regulations are pre-empted, appellee faces an uphill battle. The first hurdle that appellee must overcome is the FDA’s statement, when it promulgated the plasmapheresis regulations in 1973, that it did not intend its regulations to be exclusive. In response to comments expressing concern that the regulations governing the licensing of plasmaphere-sis facilities “would pre-empt State and local laws governing plasmapheresis,” the FDA explained in a statement accompanying the regulations that “[t]hese regulations are not intended to usurp the powers of State or local authorities to regulate plasmapheresis procedures in their localities.” 38 Fed. Reg. 19365 (1973).
The question whether the regulation of an entire field has been reserved by the Federal Government is, essentially, a question of ascertaining the intent underlying the federal scheme. See supra, at 712-713. In this case, appellee concedes that neither Congress nor the FDA expressly preempted state and local regulation of plasmapheresis. Thus, if the county ordinances challenged here are to fail they must do so either because Congress or the FDA implicitly pre-empted the whole field of plasmapheresis regulation, or because particular provisions in the local ordinances conflict with the federal scheme. According to appellee, two separate factors support the inference of a federal intent to pre-empt the whole field: the pervasiveness of the FDA’s regulations and the dominance of the federal interest in this area. Appellee also argues that the challenged ordinances reduce the number of plasma donors, and that this effect conflicts with the congressional goal of ensuring an adequate supply of plasma.
The FDA’s statement is dispositive on the question of implicit intent to pre-empt unless either the agency’s position is inconsistent with clearly expressed congressional intent, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984), or subsequent developments reveal a change in that position. Given appel-lee’s first argument for implicit pre-emption — that the comprehensiveness of the FDA’s regulations evinces an intent to pre-empt — any pre-emptive effect must result from the change since 1973 in the comprehensiveness of the federal regulations. To prevail on its second argument for implicit pre-emption — the dominance of the federal interest in plas-mapheresis regulation — appellee must show either that this interest became more compelling since 1973, or that, in 1973, the FDA seriously underestimated the federal interest in plasmapheresis regulation.
The second obstacle in appellee’s path is the presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause. Through the challenged ordinances, Hillsborough County has attempted to protect the health of its plasma donors by preventing them from donating too frequently. See Brief for Appellants 12. It also has attempted to ensure the quality of the plasma collected so as to protect, in turn, the recipients of such plasma. “Where . . . the field that Congress is said to have pre-empted has been traditionally occupied by the States ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” Jones v. Rath Packing Co., 430 U. S., at 525 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S., at 230) (citations omitted). Cf. Kassel v. Consolidated Freightways Corp., 450 U. S. 662, 670 (1981) (deference to state regulation of safety under the dormant Commerce Clause); id., at 681, n. 1 (Brennan, J., concurring in judgment) (same); id., at 691 (Rehnquist, J., dissenting) (same). Of course, the same principles apply where, as here, the field is said to have been pre-empted by an agency, acting pursuant to congressional delegation. Appellee must thus present a showing of implicit pre-emption of the whole field, or of a conflict between a particular local provision and the federal scheme, that is strong enough to overcome the presumption that state and local regulation of health and safety matters can constitutionally coexist with federal regulation.
HH <
Given the clear indication of the FDA’s intention not to preempt and the deference with which we must review the challenged ordinances, we conclude that these ordinances are not pre-empted by the federal scheme.
A
We reject the argument that an intent to pre-empt may be inferred from the comprehensiveness of the FDA’s regulations at issue here. As we have pointed out, given the FDA’s 1973 statement, the relevant inquiry is whether a finding of pre-emption is justified by the increase, since 1973, in the comprehensiveness of the federal regulations. Admittedly, these regulations have been broadened over the years. When they were adopted in 1973, these regulations covered only plasma to be used in injections. In 1976, the regulations were expanded to cover also plasma to be used for the manufacture of “noninjectable” products. 41 Fed. Reg. 10762 (1976). The original regulations also were amended to “clarify and strengthen the existing Source Plasma (Human) regulations in light of FDA inspectional and other regulatory experience.” Ibid.; see also 39 Fed. Reg. 26161 (1974) (first proposing the amendments).
The FDA has not indicated that the new regulations affected its disavowal in 1973 of any intent to pre-empt state and local regulation, and the fact that the federal scheme was expanded to reach other uses of plasma does not cast doubt on the continued validity of that disavowal. Indeed, even in the absence of the 1973 statement, the comprehensiveness of the FDA’s regulations would not justify pre-emption. In New York Dept. of Social Services v. Dublino, 413 U. S. 405 (1973), the Court stated that “[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem.” Id., at 415. There, in upholding state work-incentive provisions against a pre-emption challenge, the Court noted that the federal provisions “had to be sufficiently comprehensive to authorize and govern programs in States which had no . . . requirements of their own as well as cooperatively in States with such requirements.” Ibid. But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field. See also De Canas v. Bica, 424 U. S. 351, 359-360 (1976).
We are even more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes. As a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence. See Jones v. Rath Packing Co., 430 U. S., at 525.
Moreover, because agencies normally address problems in a detailed manner and can speak through a variety of means, including regulations, preambles, interpretive statements, and responses to comments, we can expect that they will make their intentions clear if they intend for their regulations to be exclusive. Thus, if an agency does not speak to the question of pre-emption, we will pause before saying that the mere volume and complexity of its regulations indicate that the agency did in fact intend to pre-empt. Given the presumption that state and local regulation related to matters of health and safety can normally coexist with federal regulations, we will seldom infer, solely from the comprehensiveness of federal regulations, an intent to pre-empt in its entirety a field related to health and safety.
Appellee also relies on the promulgation of the National Blood Policy by the Department of Health, Education, and Welfare (HEW), as an indication that the federal regulatory scheme is now comprehensive enough to justify complete preemption. See Brief for Appellee 25-26. Such reliance is misplaced.
The National Blood Policy was established in 1974 as “a pluralistic and evolutionary approach to the solution of blood collection and distribution problems.” 39 Fed. Reg. 32702 (1974). The policy contains no regulations; instead, it is a broad statement of goals and a call for cooperation between the Federal Government and the private sector:
“These policies are intended to achieve certain goals but do not detail methods of implementation. In developing the most effective and suitable means of reaching these goals, the Secretary will involve, as appropriate, all relevant public and private sectors and Federal Government agencies in a cooperative effort to provide the best attainable blood services.” Id., at 32703.
The National Blood Policy indicates that federal regulation will be employed only as a last resort: “[I]f the private sector is unable to make satisfactory progress toward implementing these policies, a legislative and/or regulatory approach would have to be considered.” Ibid. The adoption of this policy simply does not support the claim that the federal regulations have grown so comprehensive since 1973 as to justify the inference of complete pre-emption.
B
Appellee’s second argument for pre-emption of the whole field of plasmapheresis regulation is that an intent to preempt can be inferred from the dominant federal interest in this field. We are unpersuaded by the argument. Undoubtedly, every subject that merits congressional legislation is, by definition, a subject of national concern. That cannot mean, however, that every federal statute ousts all related state law. Neither does the Supremacy Clause require us to rank congressional enactments in order of “importance” and hold that, for those at the top of the scale, federal regulation must be exclusive.
Instead, we must look for special features warranting preemption. Our case law provides us with clear standards to guide our inquiry in this area. For example, in the seminal case of Hines v. Davidowitz, 312 U. S. 52 (1941), the Court inferred an intent to pre-empt from the dominance of the federal interest in foreign affairs because “the supremacy of the national power in the general field of foreign affairs ... is made clear by the Constitution,” id., at 62, and the regulation of that field is “intimately blended and intertwined with responsibilities of the national government,” id., at 66; see also Zschernig v. Miller, 389 U. S. 429, 440-441 (1968). Needless to say, those factors are absent here. Rather, as we have stated, the regulation of health and safety matters is primarily, and historically, a matter of local concern. See Rice v. Santa Fe Elevator Corp., 331 U. S., at 230.
There is also no merit in appellee’s reliance on the National Blood Policy as an indication of the dominance of the federal interest in this area. Nothing in that policy takes plasma regulation out of the health-and-safety category and converts it into an area of overriding national concern.
C
Appellee’s final argument is that even if the regulations are not comprehensive enough and the federal interest is not dominant enough to pre-empt the entire field of plasmaphere-sis regulation, the Hillsborough County ordinances must be struck down because they conflict with the federal scheme. Appellee argues principally that the challenged ordinances impose on plasma centers and donors requirements more stringent
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178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
NATIONAL LABOR RELATIONS BOARD, Petitioner. v. PEARL BOOKBINDING COMPANY, INC., Respondent.
No. 75-1002.
United States Court of Appeals, First Circuit.
Argued May 6, 1975.
Decided June 13, 1975.
Corina Lothar Metcalf, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Assoc. Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief for petitioner.
Julius Kirie, Boston, Mass., for respondent.
LEVIN H. CAMPBELL, Circuit Judge.
The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), petitions for enforcement of two Board decisions and orders issued against Pearl Bookbinding Company for violations of sections 8(a)(5) and (1) of the Act. The Company urges that enforcement be denied on the merits of the Board’s decisions and on the ground that the company has complied with the Board orders.
The company is engaged in the binding of pamphlets for the printing trade at its plant in South Boston, Massachusetts. Following a Board-conducted election on January 21, 1972, the Board on January 31 certified Local 16 of the International Brotherhood of Bookbinders as the bargaining agent for the company’s maintenance and production employees. The subsequent bargaining sessions resulted in an impasse, and on April 25, 1972, the union went on strike. Negotiations during the next month failed. The strike continued for several months without further bargaining sessions, and during that time there was an active picket line. Sporadic incidents of violence occurred. A company foreman, accompanied by the company lawyer, filed criminal charges against a union functionary (not an employee at the company) for pointing a gun at several persons on the company’s shipping dock from his car in an outside parking lot. Also the company filed an unfair labor practice charge against the union for strike misconduct under section 8(b)(1)(A) of the Act. There were a number of contacts between the company and union concerning these matters, as well as the question of reinstating certain employees still on strike. These matters were largely resolved by the end of August, 1972. The criminal charges were dropped on August 22, the unfair labor practice charge was dropped on August 25, the union called off the strike on August 25, and the question of reinstatement remained unresolved.
In a letter dated September 10, 1972, but not mailed until October 10, 1972, the union requested that the company resume negotiations. The company received the letter and made no response. The union filed an unfair labor practice charge against the company for refusing to bargain. At the hearing the company took the position that although an employer normally must bargain with a Board-certified union for a year in the absence of unusual circumstances, Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954), two circumstances here relieved it of that duty: first, the Bookbinders had merged with the Lithographers and Photoengravers International Union with the result that Local 16 became Graphic Arts Local 16B; and, second, during the strike the union had abandoned and disclaimed its status as bargaining representative for the company employees. Rejecting both defenses, the administrative law judge found the company to be in violation of sections 8(a)(5) and (1) and recommended that the Board order the company to bargain. The Board adopted the administrative judge’s findings and conclusions and issued the recommended order on October 31, 1973. 206 N.L.R.B. No. 192.
On December 5, 1973, the union received notice from the Board regional office of the company’s compliance with the order. On December 7, 1973, union president Carlsen phoned and then wrote a request that the company provide the names, addresses, rates of pay, and classification of all employees (numbering about 32) prior to the first negotiating session. The company took no position on the union’s request then, nor at the first bargaining session on December 21, 1973. Carlsen inquired as to which employees on the pre-strike list (the union had this list) were still employees, and company lawyer Kirie thereafter gave the names of 16 on the pre-strike list who were no longer employees. On December 30, Kirie phoned Carlsen and stated the company would not provide the current list of employees because the company did not wish them harassed. Carlsen responded that he would keep the information in confidence. Kirie later provided the classifications and rates of pay of each employee, but not the names and addresses. The company did not offer to assist the union in communicating with bargaining unit employees, such as by posting notices, permitting handbilling on its property, or giving the names and addresses to an independent mailing service. The union filed an unfair labor practice charge.
The administrative law judge found that the company did not have any good-faith fear of violence or harassment and did not offer a feasible alternative to names and addresses, that the information was relevant and necessary to the union in performing its duties as bargaining agent, and that alternative means of communicating with the employees were not available. The Board, affirming the administrative judge’s findings, held the company to be in violation of sections 8(a)(5) and (1) and ordered the company to provide the information presently and on a continuing basis and to bargain with the union. 213 N.L.R.B. No. 87 (Sept. 25, 1974).
Since the issuance of the order, the company has furnished the list, and negotiations have resumed. The Board has sought enforcement of this order and the earlier one, on the ground that without a judicial decree and the threat of contempt, the company might repeat its past misconduct. The company contests this argument, as well as the merits. Thus, we are called upon to review the Board’s findings of unfair labor practices in the two proceedings, and then to determine whether under the circumstances court enforcement of the Board’s orders is appropriate.
With respect to the first proceeding, the company contends that it had no duty to bargain for two reasons. First, it argues that after the merger the local lost its identity as the representative of the employees. The company points out that at the time of the merger referendum vote in February, 1972, employees at the company were not yet members of the local and thus did not have an opportunity to vote on the merger. This fact, in the company’s view, is significant because the local after merger was subordinate to a new international with a new president and constitution.
We believe the company must fail on this issue. Although the employees did not actually vote on the change of affiliation to a merged international, they were informed in English and Spanish of the possibility of the merger and its consequences prior to the timé of the representation vote. On the basis of undisputed evidence, the Board found that 21 of the 27 unit employees signed authorization cards reflecting sponsorship by the Lithographers (the other union in the merger) in case the merger antedated certification of the Bookbinders Local 16. Cf. NLRB v. Franks Bros. Co., 137 F.2d 989, 992 (1st Cir. 1943), aff’d, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 435 (1944). But see Dickey v. NLRB, 217 F.2d 652, 655 (6th Cir. 1954). More significantly, the company has failed to show that the successor union is substantially different — other than in name and affiliation — from the prior union. See NLRB v. Commercial Letter, Inc., 496 F.2d 35 (8th Cir. 1974); Retail Clerks Int’l Assn. v. NLRB, 125 U.S.App.D.C. 389, 373 F.2d 655 (1967); Carpenteria Lemon Assn. v. NLRB, 240 F.2d 554, 557 (9th Cir. 1956); Franks Bros., supra. To the contrary, the Board found, and its finding is supported by substantial evidence from the record as a whole, 29 U.S.C. § 160(e), that Local 16 underwent no change. It did not merge with another .local; its structure, administration, officers, assets, membership, autonomy, bylaws, size, and territorial jurisdiction remained the same; and the local continued to negotiate contracts with employers on behalf of employees it represented, and to administer collective-bargaining agreements to which it was a party. In similar circumstances, where the new local was found to be basically a continuation of the old bargaining representative, but involved a merger of two locals as well as of two internationals, one court recently has held that there is no requirement that prospective members be allowed to vote on the changes, at least in the absence of a showing that the votes of those employees could have changed the result of the election. Commercial Letter, supra, 496 F.2d at 40-41.
We conclude that the merger of the two internationals was not attended by any of the “unusual circumstances” cited in Brooks, supra, which would terminate the duty to bargain — such as a dissolution of the bargaining representative, transfer of affiliation as a result of a schism, or change in the size of the bargaining unit. Given the substantial continuity found to exist here, it would be inimical to the purpose of industrial peace relied on in Brooks were a company allowed to refuse to bargain on the ground advanced.
The company’s second reason for disavowing any duty to bargain is that the union disclaimed or abandoned its position as the employees’ bargaining representative. At the Board hearing, company counsel Kirie testified that on several occasions in early August, 1972, union president Carlsen and union counsel Cappellano said the union was going to withdraw from the negotiations. The company observes that such an attitude by the union would be reasonable to expect, since a majority of the strikers had gone back to work and others had been replaced, and the union wanted the criminal and unfair labor practice charges dropped. To a limited extent Kirle’s testimony was corroborated by that of company president Liebman. However, Carlsen and Cappellano denied making the alleged statements of disclaimer or abandonment. The administrative law judge reviewed the entire background of the strike-related disputes, as well as the conflicting testimony, and credited the testimony of the union officials rather than that of Kirie.
The judge’s findings make it inappropriate for us to inquire whether a disclaimer such as is alleged could have absolved the company from its duty to bargain within a year of certification. This court’s function is limited to deciding whether on the record as a whole there is substantial evidence to support the Board’s findings. Here there was ample supporting evidence. We have said that Board findings on credibility must stand unless they are beyond the bounds of reason. See, e. g., NLRB v. Universal Packaging Corp., 361 F.2d 384, 387—88 (1st Cir. 1966). It was not unreasonable for the Board to find that the union’s one-month delay in mailing the September 10 letter requesting further negotiations was due to Kirle’s suggestion to Carlsen that bargaining should be delayed until the heat from the criminal charge had subsided. Nor, in light of the respective postures of the company and union on the abandonment claim, was it beyond the bounds of reason for the Board to credit the testimony of the union officials rather than Kirie on each critical factual issue. The fact that the administrative judge’s opinion did not rebut every statement made by Kirie to support his recollections, does not establish that the Board failed to consider the entire record, including the unfavorable matter, under Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The company’s final claim on the merits is that the Board, in the second proceeding, erred in finding the company in violation of the Act for refusing to supply the union with the names and addresses of the unit employees. The company does not dispute that the union must be able to communicate with the bargaining unit employees in order to bargain for them, but argues that adequate alternative means of communication existed which justified the company’s refusal to provide the list of names and addresses. In addition the company contends that its fear of employee harassment justified its refusal to supply the list. See Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972).
There is no general rule requiring an employer to give the bargaining agent a list of the unit employees’ names and addresses. However, courts have imposed such a requirement when the information is relevant and necessary to the union’s performance of its duties. See United Aircraft Corp. v. NLRB, 434 F.2d 1198, 1204-05 (2d Cir. 1970), cert. denied, 401 U.S. 993, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); Prudential Ins. Co. v. NLRB, 412 F.2d 77, 83-84 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); Standard Oil Co. of Cal. v. NLRB, 399 F.2d 639, 640 (9th Cir. 1968). The existence of a duty thus depends on the factual circumstances in each case.
The company asserts that the union could have distributed handbills to employees from a public street 160 feet from the employee entrance. However, the Board found that handbilling was not a feasible means to communicate in view of the past difficulty in getting walking and riding employees to take handbills, a difficulty which continued during the company’s effective isolation of the employees from the union during litigation over the company’s refusal to bargain. It is true that the union’s own diligence is questionable. Moreover, the union had the names of 16 employees and only tried to enlist the aid of one of them. However, the turnover rate in the company was high, and none of the current employees was a member of the union. We believe that the Board’s judgment that the list of names and addresses was necessary, there being no adequate alternative means of communication, is sufficiently supported in the record.
The company further contends that even if the list were relevant and necessary to the union’s duty, the company’s fear of violence and harassment justified its refusal to provide the list. The company relies on Shell Oil, supra, 457 F.2d at 619, where the court held the employer to have a reasonable, good-faith concern over abuses of an employee list, in view of “a clear and present danger of harassment and violence”.
Here, by contrast, the Board found that there was no similar evidence of violence or harassment during the 16-month period between the end of the strike and the union’s request for the names and addresses. The only evidence of post-strike harassment was an alleged statement about one employee, ambiguous on its face, which might be taken as a veiled threat. There is substantial evidence in the record to support the Board’s finding that the company had no good-faith fear of violence or harassment, but rather was seeking to continue to isolate the employees from the union.
Having found no error in the Board’s decision on the merits, we turn to the question of the appropriateness of enforcing the Board’s orders with which, for the time being at least, the company is complying. The company has not conceded the illegality of its conduct, and the Board’s orders impose requirements which the company might at some future time disavow. The case is not moot nor does present compliance deprive this court of power to decide the disputed issues. See NLRB v. Mexia Textile Mills, 389 U.S. 563, 567 and n.4, 70 S.Ct. 826, 94 L.Ed. 1067 (1950). Here the company’s refusal to bargain and furnish information has been seen as part of a studied effort to erode the union’s position and insulate employees from their bargaining agent. The tactics apparently met with success for several years. On this history the Board may reasonably desire the finality of judicial resolution of its own decisions as well as a court order to serve as a pointed deterrent against resumption of the illegal practices.
Enforcement granted.
. The Board extended the initial year for bargaining following certification to include a period equivalent to the time between the company’s refusal to bargain and the initial expiration date of the certification year.
. The year of certified status was again extended to compensate for the time lost during the unfair labor practice. See note 1 supra.
. The vote of the approximately 28 company employees would not have affected the outcome of the referendum on the merger, which was approved by a vote of about 24,000 to 6,000.
. The Board found that at no time before or since the merger had any dissident group appeared or claimed to be the old Bookbinders Local 16.
. The company also contends that it was under no obligation to bargain with the local after merger because the company received no official notification of the change. In view of the company’s admitted knowledge of the proposed merger, this argument is without merit.
. It is undisputed that the company received a letter from the union on October 11, 1972, requesting resumption of negotiations, and that the company made no response.
. The company would require the drawing of an inference against the union from the NLRB General Counsel’s failure to call a Board agent, who had been attempting to settle the strike, to testify as an impartial observer as to what was said relating to abandonment. We see no reason to draw any such inference. We are told that it is Board policy, for various practical reasons, not to call its agents unless their conduct is impugned. We cannot say that the policy is so unreasonable as to require the sanction sought by the company. It is not represented that the company made a timely request to call the agent as its own witness or that the Board would have declined to cooperate had such a request been made. See 29 C.F.R. §§ 101.10(a) and (b)(2).
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:
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songer_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". Your task is to determine what subcategory of business best describes this litigant.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. KREBS ENGINEERS, Defendant-Appellee, Cross-Appellant. and Midwesco, Inc. and United States Fidelity & Guarantee Company, Defendants-Appellants, Cross-Appellees.
Nos. 87-1236, 87-1306.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 30, 1987.
Decided Oct. 5, 1988.
Rehearing and Rehearing In Banc Denied Nov. 30 ,1988.
Aram A. Hartunian, Hartunian, Futter-man & Howard, Chicago, Ill., for defendants-appellants, cross-appellees.
C. Lee Cook, Jr., Chadwell & Kayser, Ltd., Chicago, III., for defendant-appellee, cross-appellant.
Before CUMMINGS, WOOD, Jr. and MANION, Circuit Judges.
MANION, Circuit Judge.
In the early 1970’s, two Wisconsin towns hired Scotty Smith Construction Company (“Scotty”) to build an incinerator to burn their garbage. That action spawned a series of events that eventually resulted in a lawsuit that now has been in the federal courts for almost ten years. This is the suit’s second appearance before this court. See Fidelity & Deposit Co. of Maryland v. Sheboygan Falls, 713 F.2d 1261 (7th Cir.1983). Unfortunately, we are unable to put the suit to rest.
I.
When the towns hired Scotty to build the incinerator, they required Scotty to post a performance bond for $710,000, the amount of the contract price. Fidelity and Deposit Company of Maryland (“Fidelity”) was the bond surety. To acquire the bond, Scotty agreed to indemnify Fidelity if Fidelity had to pay on the bond. The indemnity agreement provided, among other things, that Scotty would pay any litigation expenses, including attorneys’ fees, that Fidelity incurred in paying the bond.
Scotty subcontracted with Midwesco, Inc. to build the incinerator’s pollution-control system. Midwesco had provided Scotty with a bond issued by United States Fidelity and Guarantee Company (“USF & G”). Under that bond, Midwesco agreed to indemnify Scotty for any costs Scotty incurred (including attorneys’ fees) that might arise from Midwesco’s performance of the subcontract.
Midwesco obtained the scrubber for the pollution-control system from Krebs Engineers and installed it in the system. Unfortunately, the scrubber did not scrub as well as it was supposed to. Emissions from the incinerator exceeded the maximum levels allowed by Wisconsin law, and also exceeded the limits set by the contract between Midwesco and Krebs. Midwesco, Krebs, and Scotty made efforts to get the scrubber to perform up to snuff, but to no avail. The towns had paid all but about $38,000 on the contract with Scotty, and were stuck with an incinerator they could not use.
Understandably perturbed by this turn of events, the towns asserted that the scrubber’s failure was a breach of contract by Scotty, and notified Fidelity that it must pay under the bond. A few months after the towns notified Fidelity of their claim, Fidelity filed a declaratory judgment action against the towns, Scotty, Midwesco, Krebs, and several other defendants. The complaint sought a declaration that Scotty had not breached the contract and that Fidelity was thus not liable to the towns on the bond. Alternatively, the complaint sought a declaration that if Fidelity was liable on the bond, Scotty was liable to Fidelity under the indemnity agreement.
Soon after Fidelity filed its complaint, other claims, cross-claims, and counterclaims began to fly amongst a number of parties. We mention only those claims relevant here. The towns sued Scotty, Mid-wesco, and Krebs for breach of contract. Scotty sued the towns for the $38,000 contract balance, and Midwesco, USF & G, and Krebs for indemnity. Midwesco sued the towns and Scotty for the amounts they owed Midwesco for its work, and also sued Krebs for breach of contract, negligence, and products liability. Finally, Krebs sued Midwesco for the balance due on their contract.
After a trip to this court, where we reversed the district court’s grant of summary judgment against the towns, see 713 F.2d at 1268-72, the district court set the case for a jury trial. During the first day of the trial, before any evidence was taken, the parties settled all claims involving the towns. This left Scotty, Midwesco, and Krebs—mainly Midwesco and Krebs—to fight among themselves to determine who would ultimately bear the costs caused by the scrubber’s failure. Those issues were tried to the court.
After trial, the district court held that Midwesco had to reimburse Scotty for attorneys’ fees that Fidelity had incurred and that Scotty had reimbursed to Fidelity under Scotty’s and Fidelity’s indemnification agreement. The district court also held, however, that Krebs had breached its contract with Midwesco, as well as certain implied and express warranties. Applying Wisconsin law, the court held that Midwes-co was entitled to consequential damages from Krebs, despite a consequential damages disclaimer in the contract. The court awarded Midwesco: 1) the out-of-pocket expenses it incurred in attempting to solve the scrubber problem; 2) Fidelity’s attorneys’ fees that Scotty had reimbursed to Fidelity and that Midwesco had reimbursed to Scotty; and 3) thirty-three percent of Midwesco’s own attorneys’ fees. Both Midwesco and Krebs have appealed.
II.
In its cross-appeal, Krebs challenges the damages the district court awarded to Mid-wesco. Krebs first contends that the district court erred by awarding Midwesco any consequential damages at all. Before deciding that issue, however, we must determine what state’s law to apply. The district court applied Wisconsin law; on appeal Krebs argues that California law applies because the contract between it and Midwesco specifically provided that California law would govern the contract.
Wisconsin courts have recognized the general rule that parties to a contract may select the law governing their contract. See Bush v. National School Studios, Inc., 139 Wis.2d 635, 407 N.W.2d 883, 886 (Wis.1987) (citing cases); see generally Restatement (Second) of Conflicts of Laws §§ 186 & 187 (1971); E. Scoles & P. Hay, Conflict of Laws § 18.1 (1984). But Krebs has waived any dependence on California law. In arguing the consequential damages issue in the district court, Mid-wesco relied solely on Wisconsin law. Krebs’ briefs below did not assert that California law controlled or cite any California cases. The only time Krebs mentioned California law was in noting that Wisconsin and California law were substantially the same, so that the district court’s choice between Wisconsin or California law was “immaterial.” Krebs cannot blame the district court for not digging up the California law it failed to cite, particularly after telling the court that the choice of law was “immaterial.” It is not the trial judge’s job to do the parties’ work for them. See International Administrators v. Life Ins. Co., 753 F.2d 1373, 1377 n. 4 (7th Cir.1985). Krebs took the risk that in applying the Wisconsin law the parties did cite, the district court would reach a different result than it might have had it applied California law. For better or worse, Krebs must live with the district court’s choice of Wisconsin law. Cf. Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1231 n. 1 (7th Cir.1985).
The contract between Krebs and Midwes-co provided that Midwesco’s exclusive remedy for any breach by Krebs was repair or replacement of defective parts. The contract also specifically provided that Krebs would not be liable for any consequential damages. The Uniform Commercial Code, as adopted in Wisconsin, allows parties to limit a buyer’s remedies and exclude consequential damages. Wis.Stat.Ann. § 402.719 (West 1964 & Supp.1987); see Murray v. Holiday Rambler Corp., 83 Wis.2d 406, 265 N.W.2d 513, 517, 519-20 (Wis.1978). But “[wjhere circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [the UCC].” Wis.Stat. Ann. § 402.719(2). The district court held that since replacing any parts, or even the entire scrubber, could not cure the scrubber problem, the exclusive repair or replace remedy failed of its essential purpose. Therefore, the court disregarded the limitations of remedies in the contract and awarded Midwesco consequential damages.
Krebs does not contest the district court’s finding that the exclusive contract remedy failed of its essential purpose. Krebs does argue, though, that the district court erred by refusing to give effect to the consequential damages disclaimer. According to Krebs, a consequential damages disclaimer should be considered separately from a clause limiting remedies to repair or replacement. Even if the limited remedy fails of its essential purpose, the consequential damages exclusion should remain in effect unless no other effective remedy (for example, incidental damages, Wis.Stat. Ann. § 402.715(1) or difference-in-value damages, Wis.Stat.Ann. § 402.714(2)) remains.
Other courts have given effect to consequential damages disclaimers even when exclusive remedies failed of their essential purposes. E.g., Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081, 1085-86 (3d Cir.1980); S.M. Wilson & Co. v. Smith International Inc., 587 F.2d 1363, 1374-76 (9th Cir.1978). But whatever the merits of Krebs’ argument as an original matter, it is not Wisconsin law. In Murray v. Holiday Rambler Corp., supra, the Wisconsin Supreme Court held:
Where the exclusive limited remedy of the contract fails of its essential purpose ... the buyer is entitled to invoke any of the remedies available under the UCC. This includes the right to recover consequential damages under sec. 402.715.
Thus, although an express warranty excludes consequential damages, when the exclusive contractual remedy fails, the buyer may recover consequential damages ... as though the limitation had never existed.
265 N.W.2d at 525, 526 (citations omitted).
Krebs argues that Murray is factually distinguishable from this case. The contract between Krebs and Midwesco specifically excluded consequential damages; the contract in Murray contained a clause excluding all remedies except the exclusive contract remedy without specifically mentioning consequential damages. But a clause excluding all remedies does exclude consequential damages. Also, as we have seen, Murray was quite explicit in its holding concerning consequential damages. And in reaching that holding, the Murray court cited with approval a case allowing plaintiffs to recover consequential damages despite a clause excluding all remedies except the exclusive remedy, Ehlers v. Chrysler Motor Corp., 88 S.D. 612, 226 N.W.2d 157 (1975) and cases allowing plaintiffs to recover consequential damages despite clauses specifically excluding consequential damages, e.g., Koehring Co. v. A.P.I., Inc., 369 F.Supp. 882 (E.D.Mich.1974); Adams v. J.I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (1970). See Murray, 265 N.W.2d at 526; cf. S.M. Wilson & Co., 587 F.2d at 1374 (noting that Adams and Koehring Co. belong to a family of cases supporting the proposition that a limited remedy’s failure “does remove from the contract the bar to the recovery of consequential damages”). Murray’s explicit holding, its reasoning, and the cases it cited lead us to conclude that the Wisconsin courts would find the distinction Krebs argues to be insignificant, and would award consequential damages to Midwesco, if proved.
Krebs also cites Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis.2d 21, 388 N.W.2d 584 (Wis.1986) to support its argument that consequential damages are available when an exclusive remedy fails only if no other effective remedy remains. In Bu-cyrus, the Wisconsin Supreme Court allowed a plaintiff to collect consequential damages when the limited repair and replacement remedy failed. Although Bucy-rus referred to “the underlying philosophy of the Uniform Commercial Code that there be at least a fair quantum of remedy for breach of obligations,” the court emphasized that “[t]he essential purpose of any damage award is to make the injured party whole,” and equated an effective, or “minimum quantum of remedy” with making the injured party whole. Here, the limited remedy failed of its essential purpose; replacing or repairing the scrubber would not have solved the incinerator problem. This failure exposed Midwesco, the innocent party, to liability and litigation expense, and Krebs could make Midwesco whole only by compensating it for that liability and expense. Allowing Midwesco to recover consequential damages is consistent with Wisconsin law, as stated in Murray and Bucy-rus.
III.
Aside from contending that Midwesco was not entitled to any consequential damages, Krebs does not challenge the district court’s decision to award Midwesco damages for the expenses it incurred in attempting to solve the scrubber problem. Krebs does, however, challenge the district court’s decision to award certain attorneys’ fees to Midwesco.
Wisconsin generally follows the “American Rule” regarding attorneys’ fees and litigation expenses. Absent a specific statutory or contractual provision allowing recovery, a litigant may not recover from an opponent the attorneys’ fees and expenses the litigant incurred in litigating its claim against the opponent. Murray, 265 N.W. 2d at 527. But where a defendant’s breach of contract causes the non-breaching party to become involved in litigation with third parties, a different situation arises. In that case, the non-breaching party may recover as consequential damages the amount of any judgment, along with his reasonable attorneys’ fees and litigation expenses, incurred in the third-party litigation. City of Cedarburg L. & W. Com’n v. Glens Falls Ins. Co., 42 Wis.2d 120, 166 N.W.2d 165, 167-68 (Wis.1969) (citing Restatement (First) of Contracts § 334, at 531 (1932), and 5 Corbin on Contracts § 1037, at 225-26 (1965)); see also Murray, 265 N.W.2d at 527 n. 11 and 528 n. 12; Restatement (Second) of Contracts § 351, comment c (1981); J. White and R. Summers, Uniform Commercial Code § 10-4, at 392 (1980).
Cedarburg and Murray place two general limits on a plaintiff’s recovering its expenses from third-party litigation. First, those expenses must be the “natural and proximate result” of the breach. See Mur ray, 265 N.W.2d at 527 n. 11. This standard comports with the UCC’s general requirement that consequential damages be reasonably foreseeable. Compare J. White & R. Summers, supra § 10-4, at 389 (“ ‘the test is one of reasonable foreseeability of probable consequences’ ”) (citation omitted) with Cedarburg, 166 N.W.2d at 167 (plaintiff may recover expenses for third-party litigation “that the defendant had reason to foresee when the contract was made”).
Besides being reasonably foreseeable, the plaintiff’s third-party litigation expenses must be reasonable. Id. at 167—68; see also Restatement (Second) of Contracts § 351, comment c. A plaintiff may not unnecessarily run up its legal bill in the expectation that the breaching party will ultimately pick up the entire tab.
Krebs proposes two other limits on recovering third-party litigation expenses. Krebs “suggests” that in a ease such as this “where there are claims and counterclaims and charges and countercharges running every which way amongst the parties,” third-party litigation expenses should not be recoverable. Krebs also argues that because the towns, Scotty, and Fidelity were connected with the original transaction from which Krebs’ liability arose (that is, the building of the incinerator and sale of the scrubber), they are not really third parties, so the expenses that Midwesco incurred in defending their claims are not expenses resulting from third-party litigation. See Armstrong Construction Co. v. Thomson, 64 Wash.2d 191, 390 P.2d 976 (1964).
Krebs cites no Wisconsin authority applying these limits to recovery. In Murray, however, the Wisconsin Supreme Court noted that a litigant may recover its expenses from third-party litigation in a “proper case.” Murray, 265 N.W.2d at 528 n. 12. Krebs seizes upon the Murray court’s reference to a “proper case” to argue that the Wisconsin courts would adopt the two limitations it proposes.
Krebs reads too much into the Wisconsin Supreme Court’s reference to a proper ease. The entire sentence in which the “proper case” language appears states: “This [holding that a plaintiff may not recover attorneys’ fees resulting from his litigation against the defendant] is not to suggest that expenses of third-party litigation may not, in a proper case, be recovered under sec. 402.715, stats., in accordance with the principles generally applicable to contract damages. ” Id. (emphasis added). Read in context, we believe that all the Wisconsin Supreme Court meant by referring to a “proper case” was that third-party litigation expenses are recoverable only where they are reasonable and reasonably foreseeable. Those are the “principles generally applicable to contract damages.”
Krebs offers no other reason why the Wisconsin courts would adopt the Armstrong holding. Certainly Scotty, Fidelity, and the towns were not parties to the contract between Krebs and Midwesco. Krebs does state that a multi-party case involving several different claims, counterclaims, and cross-claims presents problems in allocating fees and expenses between litigation with the breaching party and litigation with the third party. We agree that allocation can be a serious problem (and, as we shall see, in this case it is). But difficulty in calculation should not deny an innocent party all damages caused by a defendant’s breach of contract. Courts and juries are capable of sorting out compensable third-party expenses from non-compensable expenses incurred in litigating against the breaching party. See, e.g., Campus Sweater and Sportswear Co. v. M.B. Kahn Construction Co., 515 F.Supp. 64, 111-13 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981). The allocation need not be accurate to the last dollar; all that is required is that the plaintiff prove the proper amount of third-party fees to a “reasonable probability.” See Murray, 265 N.W.2d at 526.
Given the Wisconsin Supreme Court’s emphasis on making the injured party whole in awarding consequential damages, see Bucyrus, 388 N.W.2d 592, it is reasonable to conclude that that court would allow Midwesco to recover its reasonably foreseeable third-party litigation expenses caused by Krebs’ breach. Had Krebs not breached its contract with Mid-wesco, Midwesco would not have had to defend suits by the towns, Scotty, and Fidelity. Midwesco had to spend a good deal of money to defend those suits, and the only way to make it whole is to reimburse it for those costs, to the extent that they are reasonable and may be properly allocated.
The district court awarded two amounts to Midwesco as expenses resulting from third-party litigation: $44,203, which represented thirty-three percent of Midwesco’s total legal bill for the litigation; and $86,-223 (later increased to $144,686.75 pursuant to an agreement between Midwesco and Scotty), which represented the attorneys’ fees that Scotty had reimbursed to Fidelity and then passed on to Midwesco. Krebs contends that Fidelity’s attorneys’ fees are not proper consequential damages because Midwesco’s liability for those fees was not a natural and proximate result— that is, a foreseeable result—of Krebs’ breach.
Under the UCC, a seller is liable for consequential damages “resulting from general or particular requirements of which the seller at the time of contracting had reason to know_” Wis.Stat.Ann. § 402.715 (emphasis added); see also Murray, 265 N.W.2d at 528; J. White & R. Summers, supra § 10-4, at 389-90. The test for recovering consequential damages is not whether the seller actually foresaw or contemplated the resulting damages when it made the contract; instead, the test is whether the seller, knowing or having reason to know the buyer’s needs, could have reasonably foreseen the loss as a probable consequence of a breach. Id. at 389. This test is consistent with the standard Wisconsin courts generally apply in determining whether damages for a breach of contract are foreseeable. See, e.g., Reiman Associates v. R.A. Advertising, Inc., 102 Wis.2d 305, 306 N.W.2d 292, 300 (Wis.Ct.App.1981) (damages must “reasonably to be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach”); Hale v. Stoughton Hospital Ass’n, 126 Wis.2d 267, 376 N.W.2d 89, 95 (Wis.Ct.App.1985) (same).
We agree with Midwesco that the Fidelity fees were a reasonably foreseeable element of damage. Krebs knew when it sold the scrubber to Midwesco that Midwesco was going to install it as part of a pollution control device in a municipal incinerator. It should have been reasonably foreseeable to Krebs that if the scrubber did not work as it should, and the incinerator could not meet applicable emissions standards, litigation would be a likely result. It should also have been reasonably foreseeable to Krebs that Scotty would require Midwesco to supply a performance bond. Midwesco was .supplying a major component in the incinerator project; if the pollution control system failed, the entire project would probably fail (as it did), potentially exposing Scotty to substantial liability and litigation expense. In those circumstances, it would have been imprudent for Scotty not to require a performance bond from Midwesco. Thus, at the time it contracted with Mid-wesco, Krebs could have reasonably foreseen that breaching that contract, by supplying an inadequate scrubber, would result in Midwesco paying Scotty’s expenses in any litigation resulting from the scrubber’s failure.
IV.
While we have rejected all of Krebs’ general objections to the district court’s decision to award Midwesco third-party litigation expenses as consequential damages, we must remand to the district court to redetermine the amounts it should award. There are two problems with the $44,203 award for a portion of Midwesco’s own attorneys’ fees. First, it is not clear exactly what the district court was compensating Midwesco for by this award. The court stated simply that Krebs must “pay a portion of the legal fees and expenses not excluded by the traditional rule against cost-shifting.” The court also stated, however, that Midwesco could not recover expenses “incurred pursuing its own claims and defending Midwesco’s own liability against Scotty and the municipalities.... ” One of Midweseo’s “own claims” was against Krebs; Midwesco cannot recover the expenses it incurred solely in pursuing that claim. Similarly, Midwesco cannot recover expenses it incurred solely for defending Krebs’ claim against it for the balance due on their contract. But Midwesco may recover expenses it incurred in defending claims by third parties (the towns, Scotty, and Fidelity), and in pursuing its claims against third parties, as long as those claims were a foreseeable result of Krebs’ breach. On remand, the district court will have to allocate Midwesco’s fees and expenses between claims for which Midwesco may not.
To allow the district court to properly allocate the litigation expenses, Mid-wesco must present evidence to support an allocation. See Funding Systems Leasing v. King Louie Int’l, 597 S.W.2d 624, 637 (Mo.Ct.App.1979). The only evidence Mid-wesco presented regarding the fees and expenses it paid was testimony by one of its officers that it had incurred certain fees and expenses. This evidence was not sufficient to support a finding that the district court’s allocation was proper or that the fees incurred and awarded were reasonable. Although we have found no Wisconsin cases directly on point, the Wisconsin Supreme Court has stated that “the burden of proving consequential damages is on the buyer,” and that “[d]amages may not be awarded on speculation or conjecture alone.” Murray, 265 N.W.2d at 526. The United States Supreme Court has held that in cases in which a prevailing party in a civil rights case seeks attorneys’ fees under 42 U.S.C. § 1988, the prevailing party must “submit evidence supporting the hours worked,” including billing records documenting those hours, so that the district court may properly determine the hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 437, 103 S.Ct. 1933, 1939, 1941, 76 L.Ed.2d 40 (1983); see also id. at 441-42, 103 S.Ct. at 1943-44 (Burger, C.J., concurring) (“[T]he party who seeks payment must keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed.”). We believe the same standard is appropriate in this case.
We also must remand for the district court to redetermine the amount of Fidelity’s attorneys’ fees chargeable to Krebs. Midwesco is entitled to recover only the fees that Fidelity reasonably incurred and passed on to Scotty; although Krebs could reasonably foresee that it might have to pay these fees, it could not reasonably foresee having to pay an excessive fee. The only evidence concerning Fidelity’s fees was testimony by one of Fidelity’s attorneys about the billing rates of the lawyers who worked on the case and about some of his activities in the case, and testimony from an official at Fidelity that it had received and paid statements from its attorneys. The record contains no billing records documenting the hours expended.
Another problem exists with the Fidelity attorneys’ fee award. The district court originally awarded $86,223. Scotty then filed a motion to reconsider, claiming that the amount Midwesco owed it (and Krebs, in turn, owed Midwesco) was $62,374 more. The district court agreed that a higher amount was appropriate, but instead of determining the precise amount the court allowed Midwesco, Scotty, and Krebs to engage in “informal discovery” regarding the reasonableness of the amount. Mid-wesco examined Fidelity’s attorneys’ billing records and disputed certain amounts; Krebs did neither. Midwesco and Scotty eventually agreed on an amount and informed the district court. The court entered judgment based on Midwesco’s and Scotty’s agreement.
There was no evidence taken in court to support the modified amount. Midwesco contends that Krebs has waived any objection it might have to the modified amount because Krebs refused to participate in discovery. We think not. The modified amount was not litigated; it was the result of an agreement between Scotty and Midwesco. The district court had no power to force Krebs to take discovery, or to agree to the amount of damages it had to pay to Midwesco. Cf. Kothe v. Smith, 771 F.2d 667, 669 (2d Cir.1985) (district court may not coerce parties into settling); Identiseal Corp. of Wisconsin v. Positive Identification, 560 F.2d 298, 301-02 (7th Cir.1977) (district court has no authority to make a party take discovery); J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir.1976) (per curiam) (district court has no authority to force a party to stipulate facts). Krebs was entitled to its day in court to contest the increase in the amount of Fidelity’s fees it had to pay.
Finally, regarding the Fidelity fees, we believe it would be inappropriate to award Midwesco fees from Krebs that are allocable to direct litigation between Fidelity and Krebs. It is true that these are third-party expenses in the sense that they do not relate to litigation between Midwes-co and Krebs. But to have Krebs reimburse Midwesco for those fees would be to, in effect, have Krebs reimburse Fidelity (through Scotty and Midwesco) for fees that arose from litigation between Fidelity and Krebs. The American Rule, which Wisconsin follows, see Murray, 265 N.W. 2d at 527-28, would not allow Fidelity to recover those fees directly from Krebs. It would be inappropriate to allow Fidelity to recover those fees indirectly from Krebs.
In determining the proper amounts to award on remand, the district court should keep in mind that there may be some overlap between recoverable and nonrecoverable fees. This should not prevent the court from reaching a proper allocation. Mathematical precision in awarding damages is not necessary. See Wis.Stat.Ann. § 402.715, official UCC comment 4. Also, as long as reasonable evidence exists, we believe it is consistent with Wisconsin law for the district court to resolve any doubts about allocation or reasonableness in favor of Midwesco, the party to be made whole. See id.; Bucyrus, 388 N.W.2d at 592 (emphasizing that the purpose of consequential damages is to make the injured party whole); see also Restatement (Second) of Contracts § 352, comment a; cf. In re Central Ice Cream Co., 841 F.2d 732, 735 (7th Cir.1988) (in determining the reasonableness of attorneys’ fees in a sanctions case, benefit of the doubt is normally resolved in the innocent party’s favor).
V.
Midwesco raises one damages-related issue in its appeal. Midwesco paid $90,000 (as did Krebs and Donohue and Associates, the project engineers) to the towns to settle all claims involving the towns. In its post-trial brief, Midwesco argued that its settlement payment was a proper element of consequential damages, and that the district court should have ordered Krebs to reimburse Midwesco for the $90,000 it paid in the settlement. The district court refused to order Krebs to pay Midwesco the $90,000, stating:
As to the settlement expense, each side bought a pig in a poke. To get rid of some pesky claims, Krebs, Donohue and Midwesco each paid $90,000 to the municipalities. Liability to the municipalities was questionable ... but each side thought it best to avoid a bigger risk by working out a settlement. Although the settling parties exercised good judgment, I find no reason why Krebs should pay Midwesco’s $90,000 share of the settlement in addition to its own.
Midwesco contends the district court erred.
Generally, an injured party may recover from a breaching party any reasonable payments the injured party makes to Settle third-party litigation. Restatement (Second) of Contracts § 351, comment c. Although the parties have not cited, and we have not found, any Wisconsin cases on point, we believe that the Wisconsin courts would follow the general rule stated in the Restatement. The general rule is consistent with the make-whole rationale behind consequential damages. The general rule ¡also promotes the policy favoring private dispute settlements, see id.; if an injured party could not pass on the cost of a settlement but could pass on the cost of a litigated judgment in the third-party litigation, injured parties would rationally fight to the bitter end rather than accept reasonable settlements.
If Midwesco had settled the towns’ claims on its own, we would not hesitate to hold that Krebs should pay to Midwesco the amount Midwesco paid to the towns. The twist here, however, is that Midwesco, Krebs, and Donohue jointly settled with the towns—and we believe this twist makes a difference. The settlement was a contract between the towns, Krebs, Midwesco, Scotty, and Donohue that was intended to end all litigation involving the towns. That contract bound Midwesco. As part of that Contract, Midwesco agreed with each of the parties that it would pay $90,000 to the towns. Krebs, Scotty, and Donohue also agreed with each other, the towns, and Midwesco, to pay a certain amount (in Krebs’ case, $90,000) to the towns. The towns agreed to release all their claims against all parties—not just their claims against Midwesco. Midwesco is now asking the courts, in effect, to reform the parties’ contract to provide that Krebs shall pay $180,000 and Midwesco shall pay nothing.
We read the district court’s opinion as interpreting the settlement as we have discussed above. Given what the record reveals that the district court had before it when deciding, we think that is a proper interpretation. Midwesco, however, argues that the district court erred because the written settlement documents expressly preserved all of Midwesco’s rights against Krebs.
The “Mutual Release and Agreement” the parties signed did, in fact, state that:
Nothing in this Agreement is intended to impair, impede or in any way affect those claims and defenses which exist among [Midwesco, Scotty, and Krebs] and each or any of them, and the contractors and each of them specifically reserve any and all rights which they have or may have against one another.
The separate “Release of All Claims” document the parties signed contained similar reservation of rights language.
Krebs argues that the reservation of rights language did not preserve Midwes-eo’s right to seek reimbursement of its settlement payment from Krebs, a right which, as we have seen, undoubtedly would have existed had Midwesco settled the towns’ claims against it on its own. While the reservation of rights language appears to preserve Midwesco’s right to reimbursement, there is language in the settlement documents supporting Krebs’ argument. We need not go into detail, though, because the record does not show that Midwesco ever brought the precise language in the written documents to. the district court’s attention.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "construction". What subcategory of business best describes this litigant?
A. residential
B. commercial or industrial
C. other
D. unclear
Answer:
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songer_usc2
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15
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 15. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Nancy Corinne DYER and J. Raymond Dyer, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
No. 16451.
United States Court of Appeals Eighth Circuit.
May 10, 1961.
Rehearing Denied June 26, 1961.
J. Raymond Dyer, St. Louis, Mo., for petitioners.
Arthur Blasberg, Jr., Attorney, Securities and Exchange Commission, Washington, D. C., for respondent.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
JOHNSEN, Chief Judge.
The Securities Exchange Act of 1934 made it unlawful for anyone to solicit proxies “in respect of any security (other than an exempted security) registered on any national securities exchange in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C.A. § 78n(a).
Similarly, the Public Utility Holding Company Act of 1935 made it unlawful to solicit proxies as to any registered holding company “in contravention of such rules and regulations or orders as the Commission deems necessary or appropriate in the public interest or for the protection of investors or consumers”. 15 U.S.C.A. § 791(e).
To effectuate § 78n(a), the Commission promulgated its Regulation 14, consisting of Rules 14a-l to 14a-ll, 17 CFR §§ 240.14a-l to 240.14a-ll. This regulation requires a filing to be made with the Commission of the proxy statement, form of proxy and other material intended to be used for a solicitation and contemplates an administrative processing thereof, without formal hearing, on such examination, correspondence, conferences, comments, suggestions, or other incidents as the Commission or its Staff may choose to engage in.
There is a provision in the regulation for a privilege in stockholders to have proposals and statements in support thereof included in management’s proxy material, but matters relating to elections to office are excepted from the general privilege. Conditions also are set out under which management may refuse to include proposals. But where “management asserts that a proposal and any statement in support thereof may properly be omitted from the proxy statement and form of proxy, it shall file with the Commission * * * a copy of the proposal and any statement in support thereof as received from the security holder, together with a statement of the reasons why the management deems such omission to be proper in the particular case, and, where such reasons are based on matters of law, a supporting opinion of counsel”. Management further must forward a copy of such statement and counsel opinion to the security holder, with notice of its intention to omit the proposal.
If the Commission regards the omitting of some proposal as not being warranted under its regulations and so advises management or makes suggestion in respect thereto which is unheeded, it may sue for an injunction in a federal district court to prevent management from engaging in the proposed solicitation in violation of the regulations, or from voting the proxies so obtained. See e. g. Securities and Exchange Commission v. May, 2 Cir., 229 F.2d 123, 55 A.L.R.2d 1123; Securities and Exchange Commission v. Transamerica Corporation, 3 Cir., 163 F.2d 511.
For purposes of effectuating § 79Z(e), the Commission promulgated its Rule 61, 17 CFR § 250.61, providing in relevant substance that the solicitation of proxies as to a registered holding company shall be subject to the provisions of its Regulation 14, supra, under the Securities Exchange Act. It further promulgated its Rule 62, 17 CFR § 250.62, providing that no solicitation of any authorization in connection with any reorganization subject to the approval of the Commission or in connection with any other transaction which is or will be the subject of an application or declaration filed with the Commission shall be made except pursuant to a declaration with respect to such solicitation which is allowed to become effective in the manner prescribed by the Rule.
The language, “in connection with any other transaction which is * * * the subject of an application or declaration”, manifestly covers all matters which the statute expressly mandates must be made the subject of a declaration — as, for example, under 15 U.S.C.A. § 79f(a), the issuance or sale by the corporation of some of its capital stock, or the exercising of any privilege or right to alter priorities, preferences, voting power, or other rights of an outstanding security.
The solicitation of proxies, however, as to the ordinary incidents of a stockholders’ meeting would not on this basis come within the operation of Rule 62, since the statute does not impose the requirement of a declaration or application or make other prescription as to this field, but leaves it wholly to the regulatory authority of the Commission. And under Rule 61, which the Commission has promulgated for purposes of proxy solicitations generally which are within its jurisdiction, there is merely a requirement, as indicated above, for an informal filing of the proposed proxy material and any matter relating to management’s omission therefrom of proposals submitted by stockholders, with indication to be made of the date when the use of the proxy statement and proxy form is intended to become effective.
The Commission has, however, in practice, exercised its discretion to remove a proxy solicitation from the operation of Rule 61 and to subject it by special order to the application of Rule 62, when it has deemed it desirable to afford the opportunity for a hearing in some particular situation.
Thus, in 1957, after petitioners here (father and daughter, holders of 250 shares in the 11% million shares of voting stock outstanding in Union Electric Company) had become stockholders and sought to make objections and submit proposals as to management’s proxy material for the stockholders’ annual meeting of that year, the Commission saw fit to enter an order subjecting the situation to the application of Rule 62 and the according of a hearing thereon. On a similar array of objections and proposals being made by petitioners to management’s proxy material for the stockholders’ meeting of 1958, the Commission entered another such special order for that year. Petitioners came back with a third barrage of objections and proposals to management’s proxy material for the year 1959, and the Commission once more exercised its discretion to deal with the situation under Rule 62 and to accord an opportunity for hearing.
In all of these situations, petitioners just as tenaciously sought review before us of the Commission’s holdings against them, and we have successively made af-firmances of each, of the orders which the Commission had entered. See Dyer v. Securities and Exchange Commission, No. 15,765, 8 Cir., 287 F.2d 773; Dyer v. Securities and Exchange Commission, No. 15,989, 8 Cir., 266 F.2d 33; Dyer v. Securities and Exchange Commission, No. 16,205, 8 Cir., 289 F.2d 242.
Petitioners have also in this short period challenged before us another order of the Commission, which permitted Union Electric to make offering and sale to its common stockholders of some additional shares of its unissued stock. This order too we found to be without basis for the attack which petitioners launched against it. See Dyer v. Securities and Exchange Commission, No. 16,347, 8 Cir., 290 F.2d 534.
There is now before us an attack upon the Commission’s action as to the proxy material of management and the proposals submitted by petitioners in relation to the annual meeting of 1960. Management, in regular course, as it had done in the past, made filing of this material in accordance with Rule 61. After three successive years of the same kind of fruitless and impositional experience with petitioners from having tolerantly granted them hearings under Rule 62, the Commission saw fit to deal with management’s 1960 proxy material and petitioners’ submitted proposals on the basis of Rule 61, with mere administrative processing, in accordance with the Commission’s procedure and practice in proxy situations generally.
Communication was engaged in with both petitioners and management in respect to petitioners’ proposals. Two of the ten proposals made by petitioners were included by management in its proxy statement and form at the Commission’s suggestion. The other 8 were omitted from the proxy, but their general nature was set out by management in the notice of the meeting and it was indicated that they would be subject to being acted upon, should petitioners see fit to bring them before the meeting.
Petitioners, however, did not want the matter so processed, and they made request of the Commission that it handle the situation under Rule 62 and again hold a hearing on all their proposals. The Commission advised petitioners that it would not grant this request, and, subsequent to the administrative processing in which it engaged, management made solicitation on the basis of its proxy statement and form, as amended by an adoption of the Commission’s suggestions.
The situation has been brought here by a petition for review under 15 U.S.C.A. § 79x(a). The Commission has moved to dismiss the proceeding, on the ground that whether it chose to deal with the situation under Rule 61 or Rule 62 was a matter for its absolute discretion, which could not be judicially reviewed. It also contends that since the processing under Rule 61 does not involve any formal orders on its part but simply the engaging in such comments, suggestions, or other informal indications as it may choose, which are not made express conditions to a solicitation, as can be done under Rule 62, there is nothing to which a petition for review could be filed. Section 79x(a) grants a right of review of Commission action only as to “an order issued by the Commission”.
Petitioners argue that, when the Commission refused their request for a hearing and advised them to that effect, this was in substance and effect an order of denial of hearing made by the Commission, whose validity or propriety in the circumstances would be subject to being tested by a petition for review.
But even if the Commission’s refusal to grant a hearing be regarded as a denial order, this would not open up the situation to all of the contentions here which the petition for review seeks to raise. Thus, there is no room to argue that such a denial of hearing would ■constitute a deprivation of due process in the situation. Our previous opinions, both in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, and Dyer v. Securities and Exchange Commission, No. 15,989, 266 F.2d 33, have emphasized that “what [petitioners] were seeking to obtain from the Commission by their demands to have inclusions made in management’s proxy materials, was * * * the according of a privilege to them under the Commission’s regulatory powers and not the enforcing of some legal right existing in their stock ownership”, and that, “since privilege not legal right was involved, it was not a situation in which * * * [it] could be argued that * * * hearing was necessary as a matter of due process”. [287 F.2d 779].
The most that there could be a right to have examined would be simply whether the Commission abused its discretion in refusing to hold a hearing. As noted, the Commission takes the position that it had an absolute discretion, not merely a legal one, in respect to whether it would hold a hearing or not.
The statutory language, “as the Commission deems necessary or appropriate”, has been characterized by us as being “legally of the broadest content in its grant of regulatory and administrative power”, Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 779, and as being entitled to have full sweep, especially “in its relation to a * * * privilege, not an inherent stock-ownership right, such as the according of inclusion to some proposal by a stockholder in management’s proxy material— which * * * has its * * * measure not in statutory specification but in delegated judgment as to regulatory need and appropriateness”. Dyer v. Securities and Exchange Commission, No. 16,205, 289 F.2d 242, 245.
In making provision for such a privilege of inclusion of stockholders’ proposals, the Commission was acting within the spirit of the statute but not on the basis of any legislative command imposed upon it. It therefore had the right to make the privilege subject to such terms of availability and mode and extent of enjoyment as it should see fit to impose. The only bounds would be those of traditional legal and administrative concepts, that there could not exist unreasonableness, discriminatoriness, or want of fundamental fair play in relation to what it did.
With mere privilege and not right being involved, the Commission could make the field subject, for general purposes, to purely administrative handling and processing, without any quasi-judicial aspect. Thus, it would not for purposes of the privilege be required to accord a stockholder a formal hearing.
Petitioners argue that this concept is violative of the provision of 15 U.S.C.A. § 79t(c), that “Orders of the Commission under this chapter shall be issued only after opportunity for hearing”. That provision, however, cannot be regarded as having application to purely administrative actions, which are without any quasi-judicial aspect either inherently or by legislative prescription. For example, an order of the Commission directing that management’s proxy material and proposals submitted by a stockholder should in a particular situation be made the subject of a declaration under Rule 62, instead of simply being processed under Rule 61, could hardly be contended to require an opportunity for hearing under § 79t(c) before the order would be entitled to be made.
We conclude our disposition of petitioners’ contention that Rule 61 should be held to be invalid in its application to the Public Utility Holding Company Act because of the provision of § 79t(c), by a repetition of our expression in one of petitioners’ previous eases: “Since privilege not legal right was involved, it was not a situation in which the statute could be said to have made an absolute requirement for a hearing, nor could it be argued that it was one in which hearing was necessary as a matter of due process”. Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 779.
Hence, as indicated above, we think the Commission validly could limit the administration of the proxy-inclusion privilege to the process provided for in Rule 61. Had its regulations so done, there could be no possible basis for a complaint, such as petitioners make here, that they were improperly denied a hearing. But the regulations did not make such an absolute circumscription as to the administration of the privilege. They provided a door for the discretionary granting or requiring of a hearing by the Commission, through a use of the provisions of Rule 62 instead of Rule 61 as to a particular situation.
Two procedural channels for processing proposals submitted by stockholders thus were constituted by the regulations. Recognition was thereby made that there could be situations in which the Commission would feel that a hearing was needed, and the regulations were framed to make clear the Commission’s right to exercise this discretionary choice.
In these circumstances, there could be basis to contend that the way had impliedly been left open for a request to be made of the Commission to exercise its discretion to process a situation under Rule 62 so as to afford the opportunity for a hearing, and that the Commission could not in that event engage in an arbitrary or discriminatory exercise of that discretion but had to do so responsibly.
We said on this aspect in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 780: “Had the Commission refused to hold a hearing, it would have had to be demonstrated that the situation was one where, from its nature or circumstances, it was an abuse of discretion for the Commission not to have held a hearing, in order properly [to be able] to arrive at the facts or soundly to be able to exercise judgment on necessity or appropriateness as to the privilege”.
Ordinarily, the requirements of the regulations as to the statement entitled to be made in support of a submitted proposal and the statement required to be made by management in its opposition thereto, read in conjunction with the proposal itself, would enable the Commission to make responsible exercise of its power of judgment and discretion on necessity and appropriateness in relation to the particular privilege being sought. Only in some extreme or special situation could there at all be any basis to contend that, within the power of discretion which it had provided itself, the Commission should have held a hearing in order to enable it to engage in responsible judgment, and that its refusal to hold one therefore was an abuse of such discretion.
In this connection, however, it should be borne in mind that, as indicated above, such duty as the Commission could have to hold a hearing by virtue of the discretion which it had chosen to vest in itself, would not be a matter of procedural obligation owed to the proposing stockholder but a matter of the proper exercise of administrative responsibility by it in relation to what it had expressly or impliedly imposed upon itself by its regulations.
Here, however, on the face of petitioners’ proposals and the statements relating thereto, as contained in the petition for review, and in their setting of the previous cases and the Commission's rulings therein, we are unable to see any basis whatever on which it could be contended that an abuse of discretion was capable of existing in the Commission’s refusal to hold a hearing.
There could be no need to grant a hearing on a proposal which was in substance simply a renewal of a matter on which the Commission had passed in previous years.
There could be no occasion to grant a hearing on petitioners’ attempt to convert the stockholders’ meeting into a judicial forum to have a resolution of purported declaratory judgment adopted, on an accusation that the directors had made illegal stock profits, that the directors were “required to pay over to the company all the profit they derived.” If there had been illegal profits, 15 U.S.C.A. § 79q(b) contained provision for the remedy: “Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the company entitled thereto or by the owner of any security of such company in the name and in the behalf of such company * *
The directors would be entitled to their day in court on any such charges made under § 79q(b), and the Commission could properly deny the privilege of using management’s proxy material to solicit votes for such an incompetent legal declaration. Petitioner J. Raymond Dyer is a lawyer, so that he could not be in ignorance of the legal irrelevance, and impropriety of what he was seeking to have done.
Nor could the Commission be asked to hold a hearing on such absurd and baseless proposals as that the stockholders who subscribed for the stock involved in Dyer v. Securities and Exchange Commission, No. 16,347, 290 F.2d 534, had been overcharged and should have a refund made to them of 10^ per share; that the stock involved in that case which had been sold to employees of the company should be recalled and invalidated by the directors; and that the directors should be required to reimburse the company for all the dividends paid on such employees’ stock.
No more would the Commission be obliged to hold a hearing on such proposals and statements as that the directors “are hereby censured for malfeasance in office”; that they “should not only be censured they should be expelled”, etc. We have previously upheld the Commission’s exclusion of such proposals and statements from management’s proxy material as representing campaign material on the part of petitioners against such directors’ reelection to office and therefore not being within the privilege of Rule 14A-8,17 CFR § 240.14a-8, under the express provision that “This section shall not apply, however, to elections to office”. Dyer v. Securities and Exchange Commission, No. 16,205, 289 F.2d 242, 247.
On the face of the petition for review as related to the Commission’s holdings in the previous cases on which we have passed, there plainly was nothing that could responsibly call for the Commission to grant a hearing as a matter of being able to arrive at salient facts or being able to exercise rational judgment on necessity or appropriateness in the immediate situation. We might again remind of our closing language in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 783, “that the proxy inclusion-and-expression privilege is an element of regulation and not of license in corporate democracy, and that, whether in general or particular situation, its measure or scope lies in the legislative language ‘as the Commission deems necessary or appropriate’, unless the Commission acts without rational basis or without fair play”.
The Commission’s refusal to grant a hearing is here entitled to summary af-firmance.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 15. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
PINKERTON v. UNITED STATES.
No. 9523.
United States Court of Appeals Seventh Circuit.
Nov. 24, 1948.
James B. Martin, of Springfield, Ill., Charles E. Bliss, of Taylorville, Ill., and Harry B.. Hershey and Lee W. Ensel, both of Springfield, Ill., for appellant.
Howard L. Doyle, U. S. Atty., and Marks Alexander, Asst. U. S. Atty., both of Springfield, Ill., Theron L. Caudle, Asst. Atty. Gen., Arthur L. Jacobs, Atty., Dept. of Justice, of Washington, D. C. and George A. Stinson, Ellis N. Slack, A. F. Prescott, and Clarence J. Nicltman, Sp. Asst. to Atty. Gen., for appellee.
Before KERNÉR and MINTON, Circuit Judges, and SWYGERT, District Judge.
KERNER, Circuit Judge.
Plaintiff, as receiver of Mt. Auburn & Osbernville Grain Company (hereinafter referred to as Auburn), filed a timely claim for refund of federal income and excess profits tax which the Commissioner of Internal Revenue rejected. Upon denial of the claim, suit was instituted. The facts were stipulated. They appear in the trial judge’s findings reported in D.C., 73 F.Supp. 590. The controlling facts briefly summarized are that although Auburn was originally engaged in the grain business, it entered into an agreement under which it ceased active grain operations and instead assumed the active status of a landlord-lessor. In 1944 a receiver was appointed to manage and operate Auburn. As receiver he collected rents which would have been taxable to Auburn, deferred payment of part of the rent, paid real estate taxes, sold real estate and realized a profit, that is, a net capital gain for the sale of real estate. Based on these findings the court concluded that plaintiff, as receiver, had carried on precisely the business that had been carried on by Auburn for some years preceding the receivership and that the taxable income and gain thereby realized came into his hands as a result of his management of the business and properties of and the collection of rent due Auburn. The court ruled that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code, 26 U.S. C.A. § 52, and that the taxes had been properly paid; it dismissed the complaint and entered judgment for costs against plaintiff. To reverse this judgment, plaintiff appeals.
Section 52 of the Internal Revenue Code reads in part as follows: “In cases where receivers * * * are operating the property or business of corporations, such receivers * * * shall make returns for such corporations in the same manner and form as corporations are required to make returns. Any tax due on the basis of such returns made by receivers * * * shall be collected in the same manner as if collected from the corporations of whose business or property they have custody and control.”
Plaintiff makes the point that where a receiver takes immediate steps to sell and does sell all of the assets of a corporation, except those which the court appointing the receiver, ordered reserved for collection, it cannot be said that the receiver is operating the property or business within the meaning of the statute, citing among other cases, In re Owl Drug Co., D.C., 21 F.Supp. 907, and In re Heller, Hirsch & Co., 2 Cir., 258 F. 208.
In the Owl case the trustee took over the drug stores which the bankrupt had formerly operated, and after selling the business and all of its assets as a going concern, he deposited the proceeds in a bank. The court held that the interest earned on the deposits was not gain derived from the operation of the business of the bankrupt. In the Heller case the facts were that the trustee was not carrying on the business of the bankrupt, and the funds constituting the income were the result of a compromise made by the trustee of a claim for nonpayment of salary and commissions. Thus, the trustee did nothing more than collect the proceeds from a claim, which he compromised, arising from a contract entered into and completely executed by the corporation prior to the bankruptcy. We do not disagree with these decisions but, in the light of the instant facts, we do not think they are applicable here.
In our case Auburn’s business was the collection of rents, and the Christian County Court entered a decree directing the receiver to take charge of, manage and operate its assets, and after plaintiff was appointed receiver he succeeded to and continued Auburn’s sole business function. Under these circumstances we think he was not only operating Auburn’s business, but he also took over its corporate property and in the course of his receivership he operated its property, and hence came within the meaning of § 52 of the Act. We are fortified in this conclusion by the cases presently to be discussed in which the words “operating the property or business” have received judicial construction.
It is immaterial that the receiver’s activities were of short duration. Von Baumbacb v. Sargent Land Co., 242 U.S. 503, 517, 37 S.Ct. 201, 61 L.Ed. 460. See also Page v. M. Rich. & Bros. Co., 5 Cir., 99 F.2d 607. True, the Von Baumbach case did not involve § 52 of the Revenue Act. It was a suit to recover taxes paid under protest and assessed under the Corporation Tax Law of 1909, yet the question was whether plaintiff was doing business.' The Act in that case did not require any particular amount of business in order to bring a company within its terms; neither does § 52 of the Revenue Act; Hence whether the activities are slight or of short duration is immaterial.
State v. American Bonding & Casualty Co., 225 Iowa 638, 281 N.W. 172, however did involve an interpretation of § 52 of the Revenue Act. There, as here, the receiver took over properties and collected rents. No federal income tax was paid 'upon the income thus derived by the receiver. The United States Government filed a claim against the corporation. The receiver filed objections to the claim contending that as the corporation had been dissolved, it could not have any income after its dissolution, and could not, therefore, be subject to any income tax. The court, in disposing of the receiver’s contention, 281 N.W. at page 175, said: “ * * * this receivership comes fairly within the phrase ‘receiver operating the property or business,’ especially in connection with the words occurring later in the statute, ‘of whose business'or property they have custody and control.’ ” In United States v. Metcalf, 9 Cir., 131 F.2d 677, the corporation had been adjudicated a bankrupt and its property was in the 'course of -administration by a trustee for ultimate liquidation. The properties consisted of' various parcels of real estate from which the trustee had collected income. The trustee coni tended" that even if this income 'was acquired by him in the operation of the bank*rupt’s property, it was not taxable because his ultimate objective was- the liquidation of the entire estate. The court held that it is what the trustee does that determines his liability, and since1 he :had collected various kinds of income from the properties, he was doing business within the meaning of § 52 of the Revenue Act. See also Louisville Property Co. v. Commissioner, 6 Cir., 140. F.2d 547.
' In the light o-f these cases and the facts in our case, we are of the opinion that the District Court correctly held that plaintiff was an operating receiver within the meaning of § 52 of the Internal Revenue Code. Consequently, the judgment must be affirmed.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel1_7_2
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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").
BARCELO et al. v. SALDANA, Executive Secretary of Porto Rico.
No. 2610.
Circuit Court of Appeals, First Circuit.
Dec. 23, 1931.
O. B. Frazer, of New York City (Antonio R. Bareelo, Miguel Guerra Mondragon, Manuel A. Martinez-Davila, and Angel Arroyo Rivera, all of San Juan, Porto Rieo, on the brief), for appellants.
William C. Rigby and Fred W. Llewellyn, both of Washington, D. C. (James R. Beverley, Atty. Gen., of Porto Rico-, and Blanton Winship, Judge Advocate General, of Washington, D. C., of counsel), for appellee.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
WILSON, Circuit Judge.
This is an appeal from a decree of the Supreme Court of Porto Rico denying the petition of the appellants for a writ of mandamus to compel the defendant, who is the Executive Secretary of Porto Rico, to register the names of the appellants as nominees of the Union Party of Porto Rieo, respectively, for the office of Resident Commissioner of Porto Rieo at Washington, and as a member of the Board of Review and Equalization of Porto Rieo.
The first issue raised before this court is on a motion to dismiss the appeal for lack of jurisdiction under paragraph 4, § 128 (a), of the Judicial Code, 28 USCA § 225 (a), on the ground that no federal question was involved in the decision of the Supreme Court, and that the value in controversy, exclusive of interests and costs, does not exceed the sum of $5,000.
It is not urged by counsel for the appellants that jurisdiction exists on the second ground. They rest their case on the question of jurisdiction on the ground that a federal question is involved, in that, if the decision of the Supreme Court is permitted to stand, it would, in violation of the Constitution of the United States and section 2 of the Organic Act of Porto Rieo, impair the validity of a .contract entered into between two political parties, and would deprive the people of Porto Rieo of equal rights under the law, and would unreasonably deprive them of the privilege of suffrage, which was extended to them under section 35 of the Organic Act, as well as under sections 25, 2.6, 27, 28, and 36.
The main facts out of which the issues arise in this case, both as to jurisdiction, and on the merits, are as follows: Since 1904 -the Partido Union de Puerto Rico, or the Union Party of Porto Rieo, which will hereinafter he referred to as the Unionist Party> has been the majority party in Porto Rieo. From 1904 to 1924 another political party designated as the Partido Republicano Puertorriqueño, or the Republican Party of Porto Rico, which will hereinafter be referred to as the Republican party, has contested the elections with the Unionist Party. In 1906 a third party appeared, which, without printing its Spanish title, may be referred to as the Socialist Party, but which had few followers until 1917. In 1920 it polled nearly 60,000 votes.
For some reason, which does not appear in the record, the Unionist Party and the Republican Party decided to form an alliance in the election of 1924, which they did by calling conventions of their respective parties in May of that year, each of which adopted a resolution to the effect that the said parties should form a political alliance or coalition under the name of the Porto Rican Alliance, which “shall assume and exercise all the powers and prerogatives appertaining to the two historical parties of Porto Rieo called the Porto Rieo Union Party and the Porto Rican Republican Party.”
Arrangements were agreed upon for the management of the affairs of the Alliance, the Central Committees of the two parties to remain in recess “for the duration of the coalition.”
As a result of this coalition, there was a split in the Republican Party and a new or fourth party was organized, which styled itself the Constitucional Historice Party, which will hereinafter be referred to as the Constitutional Party.
In the general election of 1924, as a result of the coalition, the Unionist party and the Republican Party agreed on candidates and each party nominated the same persons for the several offices to be filled, but they were grouped under the separate party names and insignia on the ballot in that election, which they could do under the Election and Registration Law of Porto Rieo as it then stood, which provided for a form of the Australian ballot.
The Socialist Party and the new Constitutional Party also took a leaf out of the book of the Alliance and nominated the same candidate for Resident Commissioner at Washington.
The result of this arrangement was that the Unionist Party in the election of 1924 still remained the majority parfy and the Aliianee elected their candidates by a substantial majority.
In May, 1927 (Laws 1927, p. 394, No. 1), sections 40 and 42 of the Election and Registration Law of Porto Rico were both amended, as counsel for appellants claim, as a result of complaints, that, since the Unionist Party and the Republican Party each cast more votes in prior elections than the Socialist Party, they had all the important election officials at the polls under the law. Whether the reason advanced by counsel was the real reason for the amendments, it is unnecessary to determine. The returns from the 1924 election, however, disclose that the Repute lican Party has lost its standing as the second party numerically, owing to the split in its ranks due to the Alliance, and the Socialist Party has assumed that position. In any event, the Legislature in 1927, Aet No. 1, adopted as an amendment to section 40, a provision common in many of the states, preventing two or more parties from fusing by each nominating the same person for the same office. Section 40 as amended now reads as follows:
“Section 40. No person shall be a candidate for more than one office, nor for the same office on two or more different tickets. If he has been nominated for two or more offices on one or more tickets or for the same office on two or more tickets, he must select the office and tieket on which he prefers his name to appear as a candidate. In the event of a candidate failing to make such selection prior to twelve o’clock noon on September 30th, his name shall be certified on the ticket and for the office for which he was first nominated. Should it be impossible to determine the office or tieket for which he was first chosen, then his name shall be certified for the office or tickets first named in the petition or certificate nominating him.” (The essential parts of the amendment are indicated by the italics.)
To section 42, which regulates the use of party names and insignia on the ballots and how they may be changed, the amendment of 1927 added a provision, with the evident purpose of permitting the alliance entered into between the Unionist Party and the Republican Party in 1924 to continue, if they so elected, but under a new arrangement as to the grouping of candidates, viz. instead of each member of the allianee grouping the candidate of both parties under its own party name, which could no longer be done under section 40 as amended, an allianee or coalition of parties was permitted to adopt a new general name and insigne, containing the insignia of each party of the allianee and register the candidates of the allianee in one group under the general name and insigne so adopted.
The amendment to section 42 reads as follows:
“Provided, That such parties as at the previous election went to the polls as an allianee or coalition and registered separate tickets in which the same candidates either totally or in part appeared for the same offices, may file in the office of the Executive Secretary of Porto Rico on petition of the central directing organization of said alliance or coalition, a general name and an insigne for said alliance or coalition containing the insigne of each of the allied or coalition parties, and underneath it one sole tieket shall be registered under the prescriptions of section 40 of the Election and Registration Law as hereby amended; Provided, further, That any alliance or coalition, going to the polls under one name or insigne as determined in the foregoing proviso, shall be considered as one single party with the same prerogatives, rights and duties as under the law pertained to the parties composing it, and hereafter it shall be considered as a principal or organized party according to the number of votes obtained thereby at the election, as herein provided.”
In March, 1928, the Directive Committee of the Allianee, claiming to represent both members of the Alliance, voted to continue the allianee and coalition and proceeded to nominate candidates for the several offices, and certified the list to the Executive Secretary, together with the party name to be placed at the head of their group of candidates on the ballot and the insigne, which also included the insignia of the members of the Allianee. The name adopted was the Alianza Puertorriqueño, or the Porto Rican Allianee, and the insignia adopted was “an evenly balanced pair of scales bearing the name Alianza Puertorriqueño and embodying also the names of the two historical parties: ‘Union de Puerto Rico’ and ‘Republicano Puertorriqueño’ and their, respective insignia: the two hands and the eagle.”
Under date of August 28, 1928, a certificate was also forwarded to the Executive Secretary, stating that in a General Assembly of the Alianza Puertorriqueño held in the Municipal Theatre of San Juan on August 26,1928, it was resolved as f ollows:
“B. To ratify the resolution of the Directive Committee of the Porto Riean Aliianee of March 13, 1928, communicated to the Executive Secretary of Porto Rico and by virtue thereof the Porto Riean Alliance will go to the polls under a single ticket and insigne already adopted and registered with the official name of the Porto Rican Alliance of the Porto Rican Union party and the Porto Riean Republican party, the historical names of the two allied parties together with their symbols, personalities, rights and prerogatives thus remaining as the patrimony of The Allianee.
“That the Directive Committee of the Porto Rican Alliance, at its meeting of August 28, 1928, resolved to use as the abbreviated name of its collectivity that of Porto Riean Alliance and under that abbreviated name shall file in the office of the Executive Secretary of Porto Rico all of the certificates of conventions.”
Nominations for the several offices were thereafter sent in by the Allianee.
The two other parties, the Socialist and the Constitutional Party, were not to be outdone, and they also entered into an allianee, as they were permitted to do under the amendment to section 42, having voted for the same candidate for one office in 1924, and they too nominated a single ticket, with the result that there was, apparently, more defection from either the old Union or Republican Party, or both, and the result was not satisfactory to some of the leaders of the old Unionist Party, as the Porto Riean Alliance only won the election by less than 10,000 votes, over the Socialist-Constitutional Allianee.
The extent of this dissatisfaction and alarm was exposed by one of the appellants in a fervent speech delivered in a convention in 1929, purporting to be held by the old Unionist Party, in which he said of the political situation, among other things: “And if this situation is to continue, it may be foretold that the nearly fatal result attained by us in the last election, would be duplicated and centuplicated until the Union de Puerto Rico should suffer the greatest of defeats, thus disappearing, with her from Porto Rico, the highest exponent of patriotism, dignity and pride.”
It was natural, in the face of possible defeat at the next election, that disagreements among the leaders should arise, and the leaders of the old Unionist Party then took action to effect a withdrawal from the Alliance, in which they were apparently supported by a very considerable majority of the active members of the old Union Party, though there were those who insisted on preserving the Allianee and fighting out the battles under its name and insigne.
However, a majority of the members of the old Central Committee of the Unionist Party met and discussed the question and voted to call a convention of the Unionist Party. A convention was held and a resolution passed to withdraw from the Alliance. While this convention was being held, notices were sent out for an assemblage of the Porto Riean Allianee. A meeting was held at which some of those formerly belonging to the Unionist Party were present, and it was voted by this assemblage to continue the alliance, and retain the party name and insigne adopted in 1928. Each party, however, claims that the convention held by the other party, at which these actions were taken, was a pseudo convention.
Under these circumstances and under section 42 as interpreted by the Attorney General of Porto Rico, the Executive Secretary refused to register the names of the appellants as candidates under the name of the old Union .Party with its former insigne of the clasped hands, for the election to be held in 1932, on the ground that the word “Union” and the insigne of the clasped hands were a part of the name and insigne of the Porto Riean Allianee. A petition for writ of mandamus was therefore filed by the appellants to compel the Executive Secretary to so register their names.
A majority of the Supreme Court of Porto Rico sustained the action of the Executive Secretary and held that the allianee of the two old parties formed in 1924, having voluntarily acted under the amendment to section 42 in 1928, became a new political party with a distinct name and insigne; and that the appellants, while they and their followers, if they chose, could adopt a new name and new insigne, could not use any part of the name or insigne of the Porto Riean Allianee which still claimed it and the right to use it.
Erom the decree of the Supreme Court the petitioners appealed to this court, and as reasons of appeal have set forth fourteen assignments of error. An analysis of the assignments, however, will disclose that with one exception they either assert findings and rulings by the court below, which are not substantiated by the record, or relate to rulings of general law or interpretations of a local statute as applied to local affairs, or involve political rights that are not protected either under the Federal Constitution or the Organic Act of Porto Rico, and hence involve no federal question.
The only real ground on which the appellants can base their claim that a federal question is involved in the rulings of the court below is set out in the eleventh assignment as follows:
“That the construction given by the court below to the aforesaid sections 49 and 42, and specially to section 49 of the Election and Registration Law as amended in 1927, renders the said statutes in conflict with the Organic Act of Porto Rico, sections 25, 26, 34, 35, 36 and 37 thereof, in connection with the right of suffrage, inasmuch as it impairs and defeats the free combination of voters through political coalition or fusion tickets.”
We think the inclusion here of section 34 of the Organic Act must have been an inadvertence. No question was raised below under this section; the court below made no ruling under it; and there immediately follows in the assignment, after the enumeration of the several sections referred to, these significant words, “in connection with the right of suffrage.” Section 34 has no relation to suffrage as have each of the other sections enumerated. Counsel, however, have, urged in their brief here that the amendments to sections 49 and 42 in 1927 are invalid for want of proper specifications in the title of the act, but we think without merit, as the title was sufficient under the rulings of the Supreme court and of this court. Posados v. Warner, Barnes & Co., 279 U. S. 349, 344, 49 S. Ct. 333, 73 L. Ed. 729; Martinez v. People of Porto Rico (C. C. A.) 46 F.(2d) 427.
As to whether this assignment raises a substantial federal question may be a debatable one. As counsel for appellee point out, the mere reference to an article of the United States Constitution or a federal statute does not raise a federal question; and a federal question essential to give jurisdiction to an appellate federal court must be substantial and necessarily involved in the opinion of the court below. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 344-346, 22 S. Ct. 691, 46 L. Ed. 936; Heitler v. United States, 260 U. S. 438, 439, 43 S. Ct. 185, 67 L. Ed. 338; Equitable Life Assurance Society v. Brown, 187 U. S. 398, 311, 23 S. Ct. 123, 47 L. Ed. 190.
However, we are inclined to the view that the court below in its opinion ruled on the question of whether section 42 contravened , any of the sections of the Organic Act relating to suffrage, and since the Organic Act; unlike a State Constitution, is a federal statute, the appellants are entitled to be heard here on that issue.
Counsel for appellants persistently refer to section 49 as being unconstitutional, and insist it is so linked with section 42 that, if section 49 violates the Organic Act, section 42 must also be held to do so, or at least be rendered invalid because both were included in the same act. The connection betweeln the two sections, however, is not sufficiently clear, we think, to require them to stand or fall together. Nor do we think section 49 was involved in the question of whether the Union Party could or did withdraw from the Alliance in 1929, and retain its old prerogatives as to name and insigne. The two sections relate to entirely different subjects — one to the grouping of candidates; the other to the adoption of party names and party insignia to be placed on the ballot over the party nominations and the effect of joining in an alliance or coalition. The reference in the amendment to section 42 to the prescriptions in section 49 does not necessarily render section 42 dependent on section 49. The reference was entirely superfluous. Every party, whether formed by the coalition of two parties or not, was subject to the provisions of section 49, as well as to the other provisions of the Election Act.
Neither is the fact that they were coupled together in one act conclusive of their interdependence. They are two separate sections of one general act which govern registrations, nominations and elections in Porto Rico.
Counsel for the appellants have assumed that the Supreme Court in its majority opinion held that section 49 was constitutional, but a careful examination of the opinion discloses no ruling on this section either one way or the other. In 'fact, the court expressly states that it does not rule upon it. The court evidently did not consider section 49 as involved in the issues before it.
However, the amendment to section 49 has now been so often held to be a proper regulation of the privilege of suffrage under the Australian ballot system of voting that we think the Supreme Court might well have held it did not violate any of the provisions of the Organic Act. See People v. Czarnecki, 266 Ill. 372, 107 N. E. 625; People v. Czarnecki, 256 Ill. 320, 100 N. E. 283; Todd v. Kalamazoo, etc., Election Com’rs, 104 Mich. 474, 62 N. W. 564, 64 N. W. 496, 29 L. R. A. 330; Helme v. Lenawee County Election Com’rs, 149 Mich. 390, 113 N. W. 6, 119 Am. St. Rep. 681, 12 Ann. Cas. 473; State v. Coburn, 260 Mo. 177, 168 S. W. 956; State v. Wileman, 49 Mont. 436, 143 P. 565; State v. Porter, 13 N. D. 406, 100 N. W. 1080, 67 L. R. A. 473, 3 Ann. Cas. 794; State v. Bode, 55 Ohio St. 224, 45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696; Hayes v. Ross, 41 Utah, 580, 127 P. 340; Payne v. Hodgson, 34 Utah, 269, 97 P. 132; State v. King County Superior Ct., 60 Wash. 370, 111 P. 233, 140 Am. St. Rep. 925; State v. Anderson, 100 Wis. 523, 76 N. W. 482, 42 L. R. A. 239.
The only state courts holding to the contrary are California in a divided opinion, which state has since rendered the opinion of the court ineffective by a constitutional amendment; and New York, which has followed the practice of years standing of electing judges by the same nominations by the two leading parties.
By the same token we think there is nothing in the court’s interpretation of section 42 that is in contravention of any provision of the Organic Act, even if it were erroneous. It relates solely to the rights of political parties and in no way unreasonably interferes with the right of the electors voting for any candidate they see fit, whose name appears on the ballot, any more than the election law did before the amendment was made. The free expression of the right of suffrage is no more interfered with as to an elector who cannot read or write finder a law allowing his party to join with another party and group their candidates under one name and insigne, than it is under a law permitting two parties to group the same candidates under two party names and insigne. The illiterate elector votes for the same candidates in either case, and exercises just as much intelligence and freedom of choice in voting. It may interfere with the plans of political leaders, but it does not interfere with the organization of as many political parties as the people of Porto Rico see fit to establish, or the exercise of the rights of suffrage by inserting the name or names of any candidate an elector desires to vote for in his party column.
The only other question raised by the assignments of error is whether the Supreme Court of Porto Rico in its majority opinion correctly interpreted section 42 as applied to the alliance of the Union and Republican Party. Unless section 42 is held to contravene the Organic Act, this is purely a local issue. While this section may be susceptible of the interpretation placed on it by the appellants, it is not so clear that it is the only construction as to warrant this court in rejecting the construction by the Supreme Court of Porto Rico, which is not without foundation, even though we might even 'adopt the other as a court of first instance. Cardona v. Quinones, 240 U. S. 83, 88, 36 S. Ct. 346, 60 L. Ed. 538; Graham v. O’Ferral (C. C. A.) 248 F. 10; Trujillo & Mercado v. Succession of Rodriguez (C. C. A.) 233 F. 208, 212; Succession of Garcia v. Hernandez (C. C. A.) 270 F. 455, 458.
The suggestion may also be pertinent as bearing on the correctness of the result arrived at by the court below, that, while the sponsors of the amendment provided in detail for the method of joining two parties in an alliance, it made no provision for any method of disentangling an alliance of political parties once made under section 42. A partnership is hardly an analogous organization.
In any event, the organization and control of political parties in Porto Rico, in so far as any justiciable questions are involved, that do not concern the Organic Act, present questions which are of a purely local nature, of which this court has no jurisdiction on this appeal.
The judgment of the Supreme Court of Porto Rico is affirmed with costs.
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_appel1_1_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 first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
FIDELITY & DEPOSIT CO. OF MARYLAND v. CITIZENS NAT. BANK OF WACO.
No. 8774.
Circuit Court of Appeals, Fifth Circuit.
Feb. 23, 1939.
HUTCHESON, Circuit Judge, dissenting.
For original opinion, see 100 F.2d 807.
Albert B. Hall, of Dallas, Tex., for appellant.
H. M. Richey, of Waco, Tex., for appellee.
Before SIBLEY and HUTCHESON, Circuit Judges, and DEAVER, District Judge.
PER CURIAM.
We recognize that when the Tax Collector took checks instead of money for taxes that the taxes were not thereby paid until the checks were honored. When he took such checks to this bank which was .also the County Depository he had a right to put those drawn on another bank in a special account for collection. We hold that when collection was made by the bank as the tax collector’s agent the tax covered by such a check stood paid, and the proceeds were known to the bank to be public funds which the Tax Collector was bound to place with the depository, and since they were already in its hands to the credit of the Tax Collector the bank could hold them only as depository. The Tax Collector cannot, as he sought to do, put in his collection account either cash or checks drawn on the depository bank itself. When such checks are presented and honored, or when cash is deposited, the funds being public money are, like the proceeds of collections from other banks, held as such by the depository. By the statute, it can pay the public funds out on the Tax Collector’s checks to no others than treasurers. It may be that there is no breach of depository duty in paying checks known to be for commissions, or other things for which the Tax Collector could pay out cash instead of putting it in the depository. And money mistakenly deposited might be restored. But in all these exceptional cases the facts justifying the payment must be shown, and are not to be assumed. The depository paying checks to others than treasurers must know and be prepared to prove its justification. If there is no justification shown, the depository stands as actively joining the Tax Collector in illegally paying out the public money violating the law under which it acts as depository. The special agreement between the Tax Collector and the bank that he should put not only foreign checks but all tax monies in a collection account to enable him to retain a checking control over it we hold to be illegal, plainly at variance with the depository’s legal duty, and rather aggravating than excusing the illegal payment of his checks to others than treasurers.
It may be that the bank has an ultimate recourse on the Tax Collector personally if he really got the benefit of the misappropriated funds. We do not think this cuts off the Tax Collector’s surety from subrogation to the State’s right against the depository. The depository, as we see it, would not have recourse on the Tax Collector’s surety if it had paid the State, because it participated actively in misapplying the public money. The surety, no doubt, in assuming liability as such, and in fixing the premium therefor, relied on the law which requires the Tax Collector at once to deposit his collections . in the depository, and prohibited them being checked out otherwise than to treasurers. If that law had been observed by the depository' the surety would not have suffered this loss.
Motion for rehearing denied.
HUTCHESON, Circuit Judge, dissents.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_appfiduc
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Ciprian GONZALEZ, Defendant-Appellant.
No. 929, Docket 86-1473.
United States Court of Appeals, Second Circuit.
Petition for Rehearing Submitted April 7, 1987.
Decided June 5, 1987.
Frederick H. Block, New York City, for defendant-appellant.
Maria T. Galeno, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Kenneth Roth, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before PIERCE and PRATT, Circuit Judges, and LASKER, Senior District Judge.
The Hon. Morris E. Lasker, Senior Judge, United States District Court for the Southern District of New York, sitting by designation.
PER CURIAM:
Ciprian Gonzalez appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York by the Hon. Lloyd F. MacMahon upon Gonzalez’ plea of guilty to charges of possession and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Appellant contends that the district court erred (1) in refusing to grant his motion made pursuant to Fed.R. Crim.P. 32(d) to withdraw his guilty plea prior to sentencing and his counsel’s motion to be relieved and (2) in failing to comply with the requirements of Fed.R. Crim.P. 11 before accepting his plea.
On September 22, 1986, with an interpreter present, Gonzalez pleaded guilty to one count of an indictment alleging that he participated in the sale of the cocaine derivative “crack” in July 1986. According to the presentence report, the government contended that Gonzalez sold two vials of crack with a combined net weight of 0.40 grams to a Drug Enforcement Administration agent for $20. During the plea allocution, in accordance with Fed.R.Crim.P. 11(c), the district judge informed Gonzalez of the rights he was giving up by pleading guilty and explained the penalties that could be imposed. The judge stated with regard to the possible sentence:
Do you realize that if the court accepts your plea of guilty, the court has the power to sentence you to fifteen years in prison, fine you $250,000, and, if it sends you to prison, must impose a three-year special parole term to commence upon expiration of your prison sentence, and impose a $50 special assessment; do you understand that?
The judge also ascertained that Gonzalez understood the charges against him, and Gonzalez explained in his own words that he assisted a friend in making a crack sale. Although appellant’s description of his actions differed from the government’s version in that he did not recall personally passing the crack to the DEA agent, he did admit to participating intentionally in the transaction to earn some money. The judge made no inquiry into whether the plea was made voluntarily and was not the result of force, threats or promises.
On November 5, 1986, when the parties appeared before the district court for sentencing, Gonzalez’ attorney moved to be relieved on the ground that appellant’s statements to the probation officer, as documented in the presentence report, presented the attorney with a conflict of interest. The presentence report stated: “The Defendant maintains his innocence regarding the instant offense and claims he pled guilty on the advice of his attorney.” Gonzalez’ account of the events charged in the indictment, as related to the probation officer, also contradicted his sworn testimony to the court during his allocution. The judge denied the motion to be relieved, as well as a Rule 32(d) motion to withdraw the guilty plea, on the ground that at the time of his plea Gonzalez had been carefully interrogated to make certain he understood the nature of the charges against him, that he understood the consequences of pleading guilty, and that he was pleading because he was guilty of the crime charged and for no other reason. Sentencing was thereupon adjourned for reasons unrelated to the motions.
On November 12, 1986, when the parties reappeared before the district court for sentencing, Gonzalez’ attorney renewed the motion to be relieved as counsel, and in the alternative, the motion to withdraw the plea. Defense counsel stated that Gonzalez had informed him that Gonzalez had expected that as a first offender he would be sentenced to probation, that at the time he pleaded guilty he did not know that he could go to jail, and that he did not remember his counsel telling him he could go to jail. Specifically, defense counsel stated: “[W]e now have a defendant who additionally says that in my preparation of him I basically told him that he was guaranteed probation.” Gonzalez also represented through defense counsel that he either did not remember that during the allocution the judge had told him he could be sentenced to jail or did not understand the judge’s statements. The judge denied both motions and sentenced Gonzalez to a ten-year term of imprisonment to be followed by a three-year special parole term and imposed a $10,000 fine. Gonzalez is serving his sentence.
Appellant claims on his petition for rehearing that his plea must he vacated because the district judge failed during the plea allocution to inquire of Gonzalez, as required by Fed.R.Crim.P. 11(d), whether any promises had been made to him and to inform Gonzalez, as required by Fed.R. Crim.P. 11(c)(1), about the effect of any special parole term that might be imposed.
(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense;
In United States v. Journet, 544 F.2d 633 (2d Cir.1976), we examined Congress’ 1975 amendments to Rule 11 and called for strict compliance with the rule’s specific provisions.
In reviewing a district court’s compliance with Rule 11, we can no longer accept as sufficient general statements or inquiries by the district judge on the theory that when construed in the light of surrounding circumstances they meet the rule’s requirements. We now hold that, as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11. Otherwise the plea must be treated as a nullity.
Id. at 636. Joumet involved the district judge’s failure to advise a defendant of the maximum possible parole term that could be imposed, of his right to the assistance of counsel at trial, that a plea of guilty waived his right against self-incrimination, that no trial would be held if the guilty plea were accepted, and that he could be prosecuted for perjury if he made untrue statements under oath at the allocution. See id. at 634-35; Fed.R.Crim.P. 11(c)(1)-(5).
Two later decisions of this court appeared to relax the strict rule announced in Journet. In United States v. Michaelson, 552 F.2d 472 (2d Cir.1977), the court passed over the claim that the defendant was not advised as required by Rule 11(c)(5) that statements made under oath during the allocution could be the basis for a perjury prosecution in light of the fact that the defendant was not put under oath before questioning about his guilty plea. Id. at 477 (citing Journet, 544 F.2d at 637 n. 6). The Miehaelson court also held that the failure to advise the defendant under Rule 11(c)(3) of his right not to be compelled to incriminate himself at trial did not require the setting aside of his guilty plea in circumstances in which trial had already begun and it seemed “highly unlikely that [Michaelson’s] lawyer would not have advised Miehaelson of his right not to incriminate himself.” Id. The court took pains, however, to limit the case to its facts and stated: “Our decision therefore is not to be interpreted as overruling Joumet in any respect.” Id. at 477-78.
The second decision which appeared to signal a falling away from the strict rule was United States v. Saft, 558 F.2d 1073 (2d Cir.1977). In Saft the court treated the claimed Rule 11(c)(5) violation as inconsequential, as it had in Miehaelson. Id. at 1079. As to the failure to advise the defendant as required by Rule 11(c)(3) that he would have the right to the assistance of counsel at trial, the court found that the defendant could not have had any doubts on that score in circumstances in which counsel had already been appointed for him and the record revealed that he fully expected such representation to continue through trial. Id. at 1080. As to two other claimed violations of Rule 11, the Saft court found there was compliance and stated that “the Rule does not say that compliance can be achieved only by reading the specified items in haec verba,” id. at 1079.
Both the Saft and Michaelson cases involved Rule 11 inquiries that were conducted by district judges before Joumet was decided, and the opinions in both cases note this fact. See Saft, 558 F.2d at 1081; Michaelson, 552 F.2d at 477. Moreover, we have made clear that strict compliance with Rule 11 would in the future be enforced:
There should be no doubt after Journet that on a direct criminal appeal there will be little room for minimizing the effect of a failure to comply with Rule 11. Our recent decision in United States v. Michaelson probably represents the limit of how far we should go in that direction on a direct appeal. The policies behind Rule 11 are important and should be strictly enforced. When a district judge has failed to do so, allowing a defendant to replead will not ordinarily directly clash with society’s interest in enforcing the penal laws. Witnesses in most cases will still be available. The price of a short delay and some extra expense is a modest one to pay to correct the error of a government official (a district judge).
Del Vecchio v. United States, 556 F.2d 106, 109 (2d Cir.1977) (citations omitted); see also Soft, 558 F.2d at 1082 n. 10 (“[W]e do not believe we are here going further than Michaelson, and the problem will shortly disappear as the teachings of Journet are taken to heart.”).
The failure of the district court in this case to inquire of Gonzalez before accepting his guilty plea whether his plea was voluntary and “not the result of ... promises apart from a plea agreement,” as required by Rule 11(d), does in our view violate the prophylactic rule established for this circuit by Joumet. Appellant raises a question of promises made to induce his plea by asserting that his attorney told him that he was guaranteed a sentence of probation. This claim was brought out in connection with Gonzalez’ sentencing on November 12, 1986, and was viewed seriously enough by Gonzalez’ attorney to precipitate a renewal of his motions to be relieved as counsel and for withdrawal of the plea.
In this case the violation of Rule 11 was not a technical failure to question the defendant in the particular language of the Rule, but rather the absence of any inquiry at all on the subject. As we see it, there are three major purposes of the Rule 11(d) requirement which make it necessary that its provisions be faithfully observed. The first is to make certain that the plea is indeed voluntary; the second, to disabuse the defendant of any misconception he may have that anyone but the court has the authority to determine what his sentence will be; and third, to preserve the integrity of the plea by eliminating the basis for a later claim by the defendant that the plea was defective.
We are not suggesting that in this case appellant’s experienced and well-regarded counsel would have made promises to his client as to the outcome of his plea. What is possible, however, is that chance remarks about a court’s giving some credit for a plea of guilty or about the importance to a court of a defendant’s first offender status may have been misconstrued by appellant to be an assurance that he would not be sentenced to prison. This case presents precisely a situation in which a defendant in pleading guilty may well have mistakenly relied — for whatever reason: confusion, language barrier, stress — on a promise which a proper allocution could have uncovered. It is for this reason that it is important for the court to flush out any discussions that have occurred regarding the possible sentence a defendant may receive and to dispel any belief a defendant may have that any promise or promise-like representation made to him by anybody is binding on the court. Such questioning by the district court is particularly important when dealing with a defendant like Gonzalez. There is nothing in Gonzalez’ circumstances that would lead one to believe that this non-English speaking first offender certainly knew that no one, not even his attorney, could make him a binding promise of a non-custodial sentence.
The government contends that Rule 11(h), the harmless error provision incorporated in Rule 11, mandates affirmance of appellant’s conviction. The government’s position must be rejected. To sanction such a departure as is involved here on a harmless error theory would undercut the value of Rule 11 prescriptions. As discussed above, mistaken reliance by appellant upon misunderstood representations of counsel regarding the sentence to be imposed was a real possibility here. Nor does the failure to make a Rule 11(d) inquiry in this situation appear to be the kind of Rule 11 violation that the Advisory Committee on Rules considered might constitute harmless error when it proposed the 1983 amendments adding subdivision (h). The Notes of the Advisory Committee illustrate harmless error situations with examples such as “where the judge’s compliance with subdivision (c)(1) was not absolutely complete, in that some essential element of the crime was not mentioned, but the defendant’s responses clearly indicate his awareness of that element,” or “where the judge’s compliance with subdivision (c)(2) [sic] was erroneous in part in that the judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings.” See Notes of Advisory Committee on Rules, 18 U.S.C., App.-Rules of Criminal Procedure, Rule 11 at 452 (Supp. I 1983) {“Advisory Committee Notes ”). No comparable circumstance is presented here.
Accordingly, the guilty plea must be vacated and the defendant given the opportunity to plead again to the indictment.
Appellant also contends in his petition for rehearing that the district judge failed to comply with Rule 11 in that he did not inform Gonzalez of “the effect of any special parole term,” as specifically required by subdivision (c)(1). Although the judge did explain to Gonzalez that a mandatory minimum three-year special parole term would commence upon expiration of any prison sentence imposed, he did not inform Gonzalez of the other characteristics of a special parole term as described in 21 U.S.C. § 841(c).
The government may be correct in its argument that the judge’s explanation captured the essential difference between ordinary and special parole. Nevertheless, we think that in the future a defendant ought also to be told that if the terms and conditions of the special parole are violated, he may be required to serve a further term of imprisonment equal to the period of the special parole, with no credit for time already spent on special parole. While we recognize that a description of the effect of a special parole term complicates the plea allocution, fairness — as well as the express terms of Rule 11(c)(1) — requires that a defendant be informed of the potentially grave consequences of special parole.
We have considered appellant’s other arguments, raised on his initial appeal, and find them to be without merit. Appellant’s contention that the district court erred in denying his Rule 32(d) motion to withdraw his guilty plea prior to sentencing and in denying his attorney’s motion to be relieved as counsel are rejected because neither decision constituted an abuse of discretion under the circumstances. Appellant correctly contends that the district court failed to comply with Rule 11(c)(1) in that Gonzalez was not informed during his plea allocution that a maximum special parole term of life could have been imposed; the error is harmless, however, because Gonzalez actually received no greater special parole term than the three-year minimum period about which he had been advised. See Fed.R.Crim.P. 11(h).
The judgment of conviction is vacated and the case remanded to the district court in order to permit Gonzalez to replead.
. Gonzalez’ judgment of conviction was affirmed by an Order issued by this panel on March 26, 1987. That Order is hereby vacated by the issuance of this memorandum opinion.
. Fed.R.Crim.P. 11(d) provides:
The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.
. Fed.R.Crim.P. 11(c)(1) provides:
Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
. We do not mean to suggest that appellant or his attorney ever called to the district judge’s attention that his Rule 11 inquiry was deficient in any respect.
. Fed.R.Crim.P. 11(h) provides:
Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.
. 21 U.S.C. § 841(c) provides:
A special parole term imposed under this section ... may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section ... shall be in addition to, and not in lieu of, any other parole provided for by law.
. The Advisory Committee on Rules gave an example of a circumstance in which its proposed harmless error provision, Rule 11(h), would apply by referring to the unpublished decision of the Court of Appeals for the Fourth Circuit in United States v. Peters, 588 F.2d 1353 (4th Cir.1978). In Peters the judge failed to comply fully with Rule 11(c)(1), in that he did not correctly advise the defendant of the maximum years of special parole possible, but did inform him that the minimum special parole term was three years, and the defendant thereafter was sentenced to 15 years imprisonment and a three-year special parole term. See Advisory Committee Notes at 451-52. Such prior decisions of this court as United States v. Palter, 575 F.2d 1050 (2d Cir.1978), which, contrary to Peters, vacated guilty pleas where the district judge failed to advise defendants they could be sentenced to maximum special parole terms of life even though the special parole terms actually imposed were no greater than the minimum mandatory special parole terms of which they were advised by the judge, are therefore no longer good law in light of the 1983 amendments to Rule 11 which adopted subdivision (h).
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_weightev
|
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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Hunter Keith JACKSON, Defendant-Appellant.
No. 86-2435.
United States Court of Appeals, Fifth Circuit.
May 20, 1987.
Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.
Susan L. Yarbrough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before BROWN, REAYLEY and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Hunter Keith Jackson appeals his conviction for illegal receipt of a firearm under 18 U.S.C. §§ 922(h)(1) and 924(a). He contends that the warrant for his arrest was defective, that the gun was therefore the fruit of an illegal arrest, and that consequently this evidence should have been suppressed. We agree and reverse.
I
On July 1, 1981, Jackson was convicted in Harris County, Texas, of unlawful delivery of methamphetamine, a felony punishable by imprisonment exceeding one year, and sentenced to five years probation. Jackson’s probation officer stated that he explained the Gun Control Act to Jackson and informed him that written permission from Washington, D.C., was required to remove the firearm disabilities related to his conviction. When Jackson was released from probation in March 1983, he received from the sentencing court an order which stated in part:
It is therefore the order of the Court that the defendant be and he is hereby permitted to withdraw his plea of guilty, the indictment against the defendant be and the same is hereby dismissed and the Judgment of Conviction be hereby set aside as provided by law.
Soon after, Jackson sought the advice of his attorney, Jim Coate, concerning whether Jackson could purchase a firearm. Coate informed him that the state court order had dismissed the conviction, making him eligible to possess a firearm.
On March 9, 1984 Jackson purchased an AMT, Model Backup, .380 (9mm Kurz) caliber semi-automatic pistol (the pistol) from Bissonet Pawn Shop in Bissonet, Texas. At the same time, he completed A.T.F. form 4473, answering “no” to the following question:
Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter — a “yes” answer is necessary if the judge could have given a sentence of more than one year. Also, a “yes” answer is required if a conviction has been discharged, set aside, or dismissed pursuant to an expungement or rehabilitation statute. However, a crime punishable by imprisonment for a term exceeding one year does not include a conviction which has been set aside under the Federal Youth Corrections Act.)
It was not long before Jackson found himself involved with law enforcement officials once again. On March 24, 1984, Officer John Russell, of the Stafford, Texas, Police Department, charged Jackson with the crime of “theft by exercising control.” He obtained a warrant for Jackson’s arrest. The affidavit that supported the warrant for arrest described in specific terms the stolen property and went on to say:
Affiant, J. Russell, a peace officer with the Stafford Police Department has in his possession a written signed and sworn statement by Doyle Alton Dunbar Jr. in which he admits burglarizing the building owned by William Rao. Dunbar further states that Hunter Jackson knew that he was going to burglarize Mr. Rao’s building, and that when he was attempting to leave he got “stuck in a cement slab” and that Hunter Jackson arrived and pushed him back onto the Roadway and upon arrival at Hunter Jackson’s apartment they unloaded the stolen property.
Jackson had the subject pistol in his possession when he was arrested on the warrant.
Jackson was indicted on six counts of violations of 18 U.S.C. §§ 922 and 924. Prior to trial, Jackson moved to suppress much of the evidence against him. Granting the motion in part, the district court dismissed all counts against Jackson except count 2, which alleges that Jackson possessed the subject pistol in violation of sections 922(h)(1) and 924(a). Jackson was tried on Count 2 in a bench trial. The district court found that the pistol had traveled in interstate commerce before Jackson purchased it; that Jackson possessed the gun when he was arrested on March 24; and that Jackson had been read his Miranda rights. The court then found beyond a reasonable doubt that Jackson had committed the acts alleged in Count 2 and that he was therefore guilty of violating 18 U.S.C. § 922(h)(1), 647 F.Supp. 995. Jackson was sentenced to three years of supervised parole.
II
Jackson contends that the district court erred in refusing to suppress the pistol obtained at Jackson’s arrest. According to Jackson, the affidavit supporting the arrest warrant was insufficient as a basis for probable cause. The district court disagreed, holding that “the judge who issued the warrant had a substantial basis for concluding that probable cause existed.” Although the district court declined to reach the issue of whether the arresting officer was objectively reasonable in relying on the judge’s determination, it noted in an aside that it was “inclined to find good faith by the officers who relied on the [] warrant.”
III
A.
We begin our consideration of whether the affidavit will support the arrest warrant by looking to the Supreme Court’s recent pronouncement on the subject.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), the Supreme Court adopted the “totality of the circumstances” test for determining whether a warrant is supported by probable cause. Under Gates:
The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”
Id., 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). In reviewing a warrant, therefore, we consider the informant’s veracity, reliability and basis of knowledge as important factors; however, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 2329.
On appeal, “we construe the sufficiency of ... [the] affidavit independently of the district court,” and are not limited by the “clearly erroneous” standard of review. United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982). Like the district court, however, we do owe “deference to the magistrate’s determination of probable cause, and we must construe the affidavit in a common sense manner.” United States v. McKinney, 758 F.2d 1036, 1042 (5th Cir.1985).
B.
We first address the extent to which the affidavit demonstrates the “veracity [and] reliability” of the informant. The reliability of an informant may be established in a number of ways. United States v. Phillips, 727 F.2d 392, 396 (5th Cir.1984). The need to establish reliability may be satisfied by showing that the informant is an identified bystander or victim-eyewitness. Phillips, 727 F.2d at 397. This is so because such informants are not likely to have personal reasons to give inaccurate information to law enforcement officials. Id. The affidavit may state that the informant has previously given tips that have proved to be correct. Id. Additionally, an informant’s reliability can be demonstrated by corroboration of other information given. Gates, 103 S.Ct. at 2335.
These considerations are not applicable here because the affidavit makes clear that Dunbar was not a bystander or victim-eyewitness; instead, Dunbar, the informant, as an admitted perpetrator of the crime in question, had reason to shade any information he gave in order to exculpate himself or to curry favor with officials. See id. Additionally, the affidavit does not indicate that Dunbar had given previous tips or that his reliability was established by corroboration. Dunbar’s reliability must therefore be established, if at all, by some other means.
The affidavit does reflect two characteristics of reliability that have been addressed in our previous cases. First, Dunbar’s statement was sworn. See Phillips, 727 F.2d at 398. In Phillips we held that a sworn statement made by an informant who was aware that she would be subject to prosecution for making a false statement, was sufficiently reliable. Whether an informant is aware of possible liability for a false sworn statement determines the weight to be given the statement. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Here, however, the record and briefs are silent as to whether there were any consequences that Dunbar might have suffered for giving a false statement. Thus, it follows that we do not know whether Dunbar was aware of any consequences for providing false information. Without such information, a sworn statement from an admitted criminal is hardly more reliable than a statement that is only signed. That Dunbar’s statement is sworn, then, is not of sufficient weight to alter our determination that the affidavit lacks adequate indicia of reliability.
Second, in his statement, Dunbar incriminated himself by admitting the burglary. This factor is not entitled to significant weight as it relates to Jackson, however, because even though Dunbar confessed to the crime, his information regarding Jackson’s participation is not the part of the confession that primarily incriminates Dunbar. Indeed, Dunbar’s evidence against Jackson shifts or at least spreads the blame for the crime. Additionally, Dunbar’s inculpation of Jackson could reasonably be viewed as an attempt to curry favor and receive more lenient treatment from police officials. This affidavit, therefore, as a sworn, personally incriminating statement against Dunbar provides no significant indicia of Dunbar’s reliability as to the charges he makes against Jackson.
As can be seen from our foregoing discussion, Russell’s affidavit as presented to the magistrate provided very little indication of the informant’s reliability.
C.
Continuing our examination of the “totality of the circumstances” supporting probable cause for the issuance of this arrest warrant, we next consider whether the affidavit demonstrates a sufficient basis of knowledge on the part of the informant. This factor is particularly important here where the affidavit fails to show that Dunbar was a reliable informant, because, as Gates teaches, a strong demonstration of basis of knowledge might remedy a weak showing of reliability. 103 S.Ct. at 2329.
The affidavit described in particular the property that was stolen. It informed the magistrate that Dunbar admitted to burglarizing the building in question. As to Jackson’s involvement, Dunbar’s statement said that Jackson “knew” of the planned burglary and that Jackson assisted Dunbar after the burglary and then took possession of some of the stolen property that was stored at Jackson’s residence. The affidavit attempts to demonstrate that (1) Jackson knew the property did not belong to Dunbar and (2) he exercised control over that property. Dunbar’s statement that Jackson exercised control over the property is sufficiently supported; as an apparent eyewitness, Dunbar relates with specificity the circumstances in which Jackson took possession of the goods. The affidavit is devoid, however, of any facts indicating the basis of Dunbar’s knowledge that Jackson “knew” of the burglary. We are told nothing of the relationship between Dunbar and Jackson from which we could possibly conclude that they were confederates or that the burglary was even discussed between the two; indeed the affidavit does not even state whether Dunbar previously knew Jackson. Dunbar’s statement that Jackson “knew” of the burglary seems to be “a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause,” Gates, 103 S.Ct. at 2333, at least to the extent that the magistrate is called upon to rely on source of knowledge as the basis of probable cause.
An informant’s basis of knowledge, however, can also be established by a particularly detailed tip. See Gates, 103 S.Ct. at 2330. Although the affidavit contains no details regarding Jackson’s knowledge of the burglary, it does contain a particularized description of the property believed to be in Jackson’s possession. That information is irrelevant to our consideration of the “informant’s basis of knowledge,” however, since there is no indication that this information was obtained from Dunbar. Indeed, it seems more likely that the source of this information is a police inventory.
Although the informant’s basis of knowledge is well established as to Jackson’s possession of the goods, it is flawed in its allegation that Jackson “knew” of the burglary. If the affidavit were only slightly more complete in other respects, this particular “flaw” would be immaterial. Viewing the affidavit as a whole, however, we conclude that the source of knowledge is not so convincing as to compensate for the complete lack of indicia of veracity and reliability.
IV
In sum, the affidavit fails to demonstrate adequately the informant’s veracity, reliability or his basis of knowledge so as to support probable cause for issuance of the arrest warrant. Our review is limited to the affidavit itself because the government presented no evidence to the district court to indicate whether other facts may have been before the magistrate and considered by him in his determination of probable cause. Accordingly, we conclude that the affidavit is “bare bones” and incapable of supporting a finding of probable cause. The district court thus improperly denied Jackson’s motion to suppress the pistol in question. The judgment of conviction of the district court is therefore reversed and set aside, and the case is remanded for further proceedings, if appropriate, not inconsistent with this opinion.
REVERSED AND REMANDED.
. 18 U.S.C. § 922(h)(1) provides:
(h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
. Jackson also argues that the district court improperly rejected his advice-of-counsel defense. We do not address this argument because we reverse the conviction on grounds that the district court should have suppressed the evidence against Jackson that was obtained as a result of his arrest. Excusing a defendant on the ground that, even though he committed a crime, he did so on the advice of counsel presumes that scienter or knowledge of the offense is a necessary element of proof for conviction. Scienter is not, however, an element of the crime defined in section 922. See United States v. Schmitt, 748 F.2d 249, 251-52 (5th Cir.1984); United States v. Giles, 640 F.2d 621, 627 (5th Cir.1981).
. 18 U.S.C. § 924(a) provides in part:
(a) Whoever violates any provision of this chapter ... shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.
. Count 2 states:
That on or about March 9, 1984, in the Houston Division of the Southern District of Texas, and within the jurisdiction of this Court, HUNTER KEITH JACKSON, defendant herein, who had previously been convicted on July 1, 1981, in the 176th District Court of Harris County, Texas, of unlawful delivery of a controlled substance, methamphetamine, a crime punishable by imprisonment for a term exceeding one year, did knowingly receive a firearm, namely, an AMT, Model Backup, .380 (9mm Kurz) caliber, semi-automatic pistol, Serial Number A15768, which had been shipped and transported in interstate commerce from California to Texas.
. Veracity and reliability can be distinct considerations. We need not concern ourselves with semantics, however, particularly in this case, because there is no fact in the affidavit that establishes the general truthfulness of the informant such as his standing in the community or his reputation for veracity.
. We assume for purposes of this discussion that the entirety of Dunbar’s information cited in the affidavit was included in a sworn affidavit. Whether that is true, however, is not clear. The affidavit provides that Dunbar, in a sworn statement, admitted committing the burglary. In another sentence, the affidavit relates Dunbar's information regarding Jackson's participation in the crime, with no indication of whether this information was from the sworn statement. Because we conclude that the fact that the statement was sworn is irrelevant under the circumstances, we need not dwell on this point. We mention it, however, as another example of the inadequacy of this affidavit.
. In the "totality of the circumstances” analysis to determine whether probable cause exists, all facts contained in the affidavit are important to consider. Here, however, where the information provided by the informant is not only crucial but determinative of whether probable cause exists, a description of the stolen property cannot save an affidavit that is "bare bones” as to the informant’s veracity, reliability, and basis of knowledge.
. The government also offered no evidence relating to the good faith of the officers. Because of our conclusion that the affidavit is totally lacking in indicia of reliability and basis of knowledge, and is therefore a bare bones affidavit, the good-faith exception to the exclusionary rule is not available. See United States v. Barrington, 806 F.2d 529, 532 (5th Cir.1986).
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
BELLOWS v. PORTER et al.
No. 14683.
United States Court of Appeals Eighth. Circuit.
Jan. 29, 1953.
. Kenneth E. Bigus, Kansas City, Mo. (John E. Honsinger, Krigel, Honsinger & Bigus, Ralph M. Jones and Blackmar, New-kirk, Eager, Swanson & Midgley, Kansas City, Mo., were with him on the brief), for appellant.
Arthur J. Doyle, Kansas City, Mo. (Spencer, Fane, Britt & Browne, Kansas City, Mo., were with him on the brief), for appellees.
Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges.
GARDNER, Chief Judge.
Appellant, who was plaintiff below, alleged in his complaint two causes of action. In his first cause of action he sought specific performance of a written option to purchase his stock in the Electra Manufacturing Company. He alleged that at the times mentioned in the complaint he was a stockholder of Electra Manufacturing Company and that defendants were likewise stockholders of said company and the officers and directors thereof; that in March, 1946, plaintiff became the owner of one-third of the stock of the company, and defendant J. F. Porter became the owner of the other two-thirds of said stock; that Porter secured from plaintiff a written option by the terms of which Porter acquired the privilege of purchasing plaintiff’s stock within ten years from the date of option at the book value of the stock; that as a part of their agreement plaintiff was to become president, director and manager of the corporation but. Porter took from plaintiff his written resignation, undated, as president, director and manager, ' which Porter had the right to invoke at any time. It is then alleged that the written option was modified by a contemporaneous oral-agreement that in the event that Porter should exercise his right to file plaintiff’s, resignation as president, director and manager of the corporation, he would simultaneously exercise his (Porter’s) option to. purchase plaintiff’s stock. Plaintiff alleged-that he had fully performed all the requirements of the contract on his part to be performed- but' that defendant Porter had accepted and filed plaintiff’s resignation as president, director and manager,, but has failed and refused to punchase and' pay plaintiff the book value of his stock,, the value of which is alleged to be approximately $30,000. He asks specific enforcement of the contract.
In his second cause of action plaintiff sought damages for an alleged dilution of the book value of his stock as the result of the refinancing of the Electra Manufacturing Company by the issuance of an additional one thousand shares of common-stock; that this refinancing was unjustified, was not in good faith, nor for the interest of the corporation, but for the benefit of defendant J. F. Porter as majority stockholder. By this cause of action plaintiff sought to recover damages in the sum of $20,000 besides punitive damages.
Defendant’s answer denied that there was. any modification of the written option agreement; denied that there was any bad' faith in the refinancing of the corporation; alleged that plaintiff had been given a preemptive right to purchase his portion, of the new stock.
While one cause of action was in the nature of a suit in equity, the other was an action for damages and a jury was impanelled to try the issues. At the close-of all the evidence the court dismissed the first cause of action for want of equity and directed the jury to return a verdict in favor of defendants on both causes of action. From the judgment entered plaintiff prosecutes this .appeal alleging in substance; that (1) the court erred in dismissing the first cause of action for want of equity; (2) the court erred in not admitting plaintiff’s Exhibit 3 as evidence of an independent fact pertinent to the issues; (3) the court erred in excluding certain evidence proffered by plaintiff as to charges of Methods Engineering Counsel for the same services performed by plaintiff; (4) the court erred in refusing to submit to the jury the issue of defendants’ alleged guilt in defrauding plaintiff by diluting the value of his stock.
Although a jury was impanelled the first alleged cause of action was triable to the court. In this cause of action plaintiff sought the specific enforcement of a contract. Generally speaking, a court of equity will not specifically enforce a contract unless it is so certain and definite in its terms as to leave no reasonable doubt as to what the parties intended. In the instant case plaintiff by his pleadings, claimed that the written option was modified by a contemporaneous oral agreement. We shall first consider the testimony produced by plaintiff on this issue. The plaintiff did not testify definitely that there was any such oral agreement between the parties. Referring to his conversation with Porter relative to the written option plaintiff testified:
“Yes, this enables you Mr. Porter to buy my stock at the book value when you wish to do so, but I don’t see how it protects me if our connections were severed in order for me to get the book value for my stock. I was assured then that he believed in an incentive plan and definitely did not want a manager of the business without incentive, .and about the only way he could do it would be for this manager to have •some of the common stock of the company ; he couldn’t give this much more to someone else without losing control ■of the business himself, the common •stock of the business, so therefore in ■order to take care of my successor he would need to have my stock. * * * Again he assured me of his intent of taking up the option simultaneously with my leaving, and the need for it.”
This alleged conversation took place after the written contract had been signed. Porter made no promises that would effect a change in their written contract. He simply, in the words of the plaintiff, “assured” him of his then plan to take up the option if and when he made effective the resignation. A mere assurance that a party may act in a certain matter, standing alone, can not be converted into a contract. The rule is stated in Williston on Contracts, Vol. 1, Sec. 26, page 32, as follows:
“Since an offer must be a promise, a mere expression of intention and general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.”
The applicable principle is stated in Page on Contracts, Vol. 1, 2nd Ed., Sec. 77, as follows:
“A declaration of intention to act in a certain way which does not show that the party who makes such declaration promises to act in such a way or intends to incur legal liability obliging him to act in such a way is not an offer which can be accepted so as to make contract.”
The expression of an intention to do an act is not an offer to do it. Porter did not promise to do or to refrain from doing anything. He simply forecast what he might do in the future. The transaction is lacking in the elementary essentials of a binding contract. In any event it is not so accurate and certain as to warrant a court of equity to require its specific performance. If, however, the words of the parties be construed to constitute an oral agreement that Porter would, if he filed plaintiff’s resignation, simultaneously exercise his option to purchase plaintiff’s stock, then such an agreement made a very substantial change in the written contract between the parties. Under the written contract Porter had the right at any time within ten years to purchase this stock at its book value. He was, however, absolutely under no obligation to do so. If this oral agreement as construed by plaintiff be given effect he would be required to exercise it, not within the ten years provided by the written contract, but at the time he might accept plaintiff’s resignation. '
The parol evidence rule is one of substantive law and as the transaction here involved took place in the State of Missouri the law of Missouri is controlling. The trial court was of the view that the evidence of this so-called subsequent oral agreement could not be given the effect of modifying the written contract and we think this view is sustained by the decisions of the appellate courts of Missouri. Hickman v. Hickman, 55 Mo.App. 303; Rigler v. Reid, 186 Mo.App. 111, 171 S.W. 952; Fanchon & Marco Enterprises v. Dysart, Mo.App., 193 S.W.2d 953. In the first cited case it was held that a contemporaneous oral agreement that a grantor in a general warranty deed was to remain in possession of the premises and enjoy the profits thereof was inconsistent with the deed itself which purported to convey the title and was in contradiction of the covenants of the deed. In the course of the opinion the court said:
“The operative effect of the deed was, of course, to place the grantees in the possession and profits of the land; the evidence admitted was a restriction of this effect of the deed. And having this effect it should not have been admitted. The rule permit-' ting evidence to vary the consideration of a deed is limited to such evidence as is consistent with the operative effect and purpose of the deed. ‘Its legal import can not be varied.’ ”
In Rigler v. Reid, supra, it was contended that plaintiff had been given the right to rescind a contract to purchase corporate stock at the time he purchased the same. In the course of the opinion the court said [186 Mo.App. 111, 171 S.W. 954]:
“Obviously this is but an attempt to vary by parol the terms of a written contract plain and explicit on its face. The evidence concerning this matter is to be rejected entirely as of no avail here.” -
In the instant case plaintiff claimed that Porter who held a written option to purchase plaintiff’s stock made a contemporaneous oral agreement requiring him to exercise the option upon acceptance of plaintiff’s resignation. In effect he asked for specific performance of the option agreement as altered, varied and modified by the alleged oral agreement. The option was a formal, written document signed by both parties. As has been observed it placed no duty on Porter to purchase the stock upon the happening of any contingency,, nor at all. The alleged oral agreement materially changed this option by requiring Porter to purchase the stock upon the happening of a certain contingency. In Fanchon & Marco Enterprises v. Dysart, supra [193 S.W.2d 955], the court considered the effect of an alleged oral agreement modifying an option agreement to-purchase certain stock. The agreement did not require the owner of the stock to-offer it for sale but provided that if the-owner should “desire to sell such stock”,, then the plaintiff would have the right of first refusal. In that case plaintiff sought specific performance of the agreement as. he claimed it had been modified by a contemporaneous oral agreement requiring the owner to offer the stock for sale. Plaintiff there contended that at the time of the execution of the option agreement the owner orally agreed with the plaintiff 'that upon acquisition of the stock the owner would offer it for sale. The court held that “such an agreement would have been at variance with the plain and unambiguous, wording of the contract as written and executed by -the parties, which must prevail.”
It is argued by plaintiff that evidence of the alleged contemporaneous agreement was admissible as showing the consideration for entering into the option agreement. Of course, the actual consideration for a contract may usually be shown by parol evidence, provided, however, that such proffered evidence is not contradictory of the executory provisions contained in the contract. Watkins Salt Co. v. Mulkey, 2 Cir., 225 F. 739, 744. In the course of the opinion in that.case it is said:
“It is true that for some purposes parol evidence can be introduced to explain or amplify the consideration recited in a written contract; but this exception to the general rule does not permit proof of an oral agreement for the purpose of imposing an affirmative obligation on one of the parties of which there is no indication or suggestion in the written contract. If that were to be permitted on the theory of an inquiry into the consideration of the contract, the rule respecting the finality of written contracts would obviously be abrogated.”
The alleged oral agreement here would impose an affirmative obligation upon Porter in direct contradiction to the positive terms of the written contract. We conclude that there was no error in dismissing plaintiff’s first cause of action for want of equity.
Plaintiff, in his points to be argued, charges error in not admitting in evidence certain exhibits and in excluding testimony as to certain charges of another concern for the same character of services performed by plaintiff. These assignments do not refer to any page or pages of the record where the ruling may be found. The questions propounded are not reproduced and what objections were interposed are not shown, as required by Rule 11 of this Court. These points to be argued simply invite the Court to search the record for error and must therefore be disregarded.
It is next urged that the court erred in directing a verdict in favor of the defendants on the second cause of action. In this cause of action plaintiff sought damages for an alleged dilution of the book value of this stock as a result of the refinancing of the Electra Manufacturing Company by issuing an additional 1,000 shares of common stock. It is charged that such refinancing was unnecessary, was not in good faith nor in the interest of the corporation, but was done wrongfully at the insistence of the defendant J. F. Porter, a majority stockholder, for his own interest and profit. A review of the financial condition of the company at the time of the so-called refinancing shows that the company had paid no dividends but had operated at a net loss of $43,052 in 1948 and at a net loss of $35,587 in 1949. Profit and loss statements indicated substantial annual net losses. Its assets consisted mainly of inventory, machinery, jigs, dies and tools. Its current liabilities amounting to approximately $183,000, consisted mainly of notes payable on demand which if demanded would have resulted in a forced liquidation. There was no evidence that such refinancing was not required, nor is there any evidence that it was not done in the interest of the corporation. Neither was there any evidence of bad faith nor that the refinancing was to the profit of the defendant Porter, and there was no evidence of fraud or breach of trust. Porter as a majority stockholder had control of the corporation. When the new stock was issued plaintiff was offered the opportunity of purchasing a one-third of it, which was his derivative right. This he declined to do and Porter purchased the entire block of stock and in payment released the corporation’s indebtedness to him of $100,000'. It is, however, urged that plaintiff was not financially situated so that he could purchase the stock allottable to him. The trial court in referring to this argument suggests that if the stock was as valuable as plaintiff' claims., it could have been pledged as security, thus enabling plaintiff to make the purchase, but regardless of this suggestion we think the transaction was certainly regular on its face and there was no evidence of breach of trust or of fraud by defendants. In Gamble v. Queens County Water Co., 123 N.Y. 91, 25 N.E. 201, 202, 9 L.R.A. 527, the New York court considered a case wherein plaintiffs as minority stockholders sought relief against the majority. In the course of the opinion in that case the court, among other things, said:
“ * * * To warrant the interposition of the court in favor of the minority shareholders * * *, where such action is within the corporate powers, a case must be made out which plainly shows that such action is so far opposed to the true interests of the corporation itself as to lead to the clear inference that no one thus acting could have been influenced by any honest desire to secure such interests, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the company, and in a manner inconsistent with its interests.”
Plaintiff points to the fact that Porter purchased the additional 1,000 shares of stock as a breach of trust. There is no doubt that the company was relieved of an indebtedness of $100,000 by the issuance of this stock, nor is there any suggestion that plaintiff would have purchased any part of the 1,000 shares; in fact, he declined to make such purchase. We think plaintiff could not hope to recover unless he established that the purchase of this stock by Porter was a breach of trust and tainted with fraud. The mere circumstance that the stock was issued to the majority stockholder was not of itself sufficient to invalidate the transaction. Dunlay v. Avenue M Garage & Repair Co., 253 N.Y. 274, 170 N.E. 917; Schramme v. Cowin, 205 App.Div. 20, 199 N.Y.S. 98, 100. In Schramme v. Cowin, supra, the court among other things said:
“Some disposition must be made of the stock not taken under the right of participation, and the stockholders have a right to fix the terms of subscription and distribution of the stock not subscribed for to suit themselves, and as they desire, for the best interests of .the corporation which they own, subject only to the right of each stockholder to a pro rata participation in the increase. * * *
“That some portion of the avails of the increased capital will be used to pay honest obligations of the company, even if to some extent those obligations are owed to stockholders other than this plaintiff, shows no lack of good faith”.
The contention that plaintiff was not financially able to purchase any of this additional stock did not impress the trial court as a substantial contention. The same question was apparently urged in Schramme v. Cowin, supra, and in referring to plaintiff’s financial inability the court said:
“The plaintiff claims that this procedure oil the part of the majority stockholders is for the purpose of depleting his interest in the corporation, because, he states, it is well known to the others that he has not the means to buy his pro rata share. * * * If the stockholder is not so situated as to take and pay for the stock himself, he is entitled to sell the right to anyone who could.”
We think there was no substantial evidence to support plaintiff’s allegations in his second cause of action and hence the court committed no error in directing a verdict in favor of the defendants. The judgment appealed from is affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Charlotte I. GAMBLE, etc., etc., et al., Plaintiffs-Appellants, v. The FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, et al., Defendants-Appellees.
No. 84-3849.
United States Court of Appeals, Eleventh Circuit.
Jan. 14, 1986.
Levine, Freedman, Hirsch & Levinson, Stevan T. Northcutt, Tampa, Fla., for plaintiff s-appellants.
Walter M. Meginniss, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for Florida Dept, of HRS.
Before HILL and ANDERSON, Circuit Judges, and GARZA , Senior Circuit Judge.
Honorable Reynaldo G. Garza, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
ANDERSON, Circuit Judge:
Appellant Charlotte Gamble, suing as next friend and on behalf of Cynthia Gamble, challenges the district court’s dismissal of her complaint under 42 U.S.C.A. § 1983 against the Florida Department of Health and Rehabilitative Services (“HRS”). Gamble claims that her rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments were violated as a result of alleged severe physical and mental mistreatment suffered at the hands of foster parents with whom Gamble was placed by HRS from May 24, 1967, through November 4, 1974. Gamble demanded compensatory and punitive damages, attorney’s fees, and costs.
The district court dismissed Gamble’s suit on the ground that the Eleventh Amendment barred Gamble’s claim for damages against HRS, an agency of the state of Florida, thereby rejecting Gamble’s argument that Florida has waived its immunity from suit in federal civil rights actions. Record at 83; see Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
We agree with the district court that Florida has not waived its Eleventh Amendment immunity and that, therefore, HRS is not subject to suit in federal court in this action for damages. Therefore, we affirm.
A. Legal Standards
It is helpful to set out the complicated legal background of Eleventh Amendment doctrine against which the district court’s decision must be judged.
The Eleventh Amendment reads as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Absent a legitimate abrogation of immunity by Congress or a waiver of immunity by the state being sued, the Eleventh Amendment is an absolute bar to suit by an individual against a state or its agencies in federal court. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity extends beyond the words of the Eleventh Amendment itself, and includes suits such as the instant case in which a state is being sued by its own citizen. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).
In the landmark case of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), however, a significant exception to Eleventh Amendment immunity was announced. Young allows a federal court plaintiff to enjoin unconstitutional state action by naming the responsible state officer in the complaint, and requesting that the officer be enjoined from further unconstitutional conduct. “This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect.” Edelman, 415 U.S. at 664, 94 S.Ct. at 1356.
The Supreme Court has held, however, that the rule of Ex parte Young applies only to prospective, as opposed to retroactive, relief. Edelman, 415 U.S. at 664, 94 S.Ct. at 1356. Generally speaking, then, this will bar damage awards against state officers sued in their official capacities in suits brought in federal court pursuant to 42 U.S.C.A. § 1983. Edelman recognized that an award of damages against a state officer in an official capacity “will obviously not be paid out of the pocket of [the officer],” Edelman, 415 U.S. at 664, 94 S.Ct. at 1356, but rather will “inevitably come from the general revenues of the State,” id. at 665, 94 S.Ct. at 1357, a result the Court found to be contrary to the purposes of the Eleventh Amendment. Accord Cate v. Oldham, 707 F.2d 1176, 1181 (11th Cir.1983). Despite this bar to damage suits against the states in federal court, there are two ways in which this immunity can be overcome. First, Congress may abrogate the state’s immunity by explicit Congressional enactment through its legislative powers granted to it by the states in § 5 of the Fourteenth Amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (Eleventh Amendment no bar to Congressional enactment authorizing damage awards against state governments for violation of Title VII of the Civil Rights Act of 1964), or perhaps through its other con-gressionally-mandated legislative powers. See, e.g., Atascadero State Hospital v. Scanlon, — U.S. -, -, 105 S.Ct. 3142, 3147-50, 87 L.Ed.2d 171, 179-82 (1985); Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (concerning Congress’ use of the commerce power in enacting the FELA). Because § 1983 itself has been held not to be a Congressional abrogation of the states’ immunity from damage suits, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman, 415 U.S. at 674-77, 94 S.Ct. at 1361-63, there is no Congressional abrogation in the instant case.
Second, the state itself may waive its Eleventh Amendment immunity and, thereby, consent to suit in federal court. This type of waiver cannot easily be inferred from state legislative action. As the Edelman Court put it:
In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.”
Id. at 673, 94 S.Ct. at 1360 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)); see also Atascadero State Hospital, — U.S. at -, 105 S.Ct. at 3146, 87 L.Ed.2d at 178; Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam).
Furthermore, a state officer may also be sued in an individual or personal capacity. “Personal-capacity suits seek to impose personal liability upon a governmental official for actions he takes under color of state law.” Kentucky v. Graham, — U.S. -, -, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, 121 (1985). As opposed to suits in which the defendant is the state, one of the state’s agencies, or a responsible state officer sued in an official capacity, the Eleventh Amendment provides no bar to federal court adjudication of suits against state officers individually. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual’s assets. See generally Brandon v. Holt, 469 U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); Scheuer, 416 U.S. at 238, 94 S.Ct. at 1687. If, as was the case in Edelman, the damage award was obviously sought from the state treasury, the suit will be deemed to be one against the officer in an official capacity, and the Eleventh Amendment will therefore preclude such relief. Edelman, 415 U.S. at 664-65, 94 S.Ct. at 1356-57 (Eleventh Amendment bars suit against state welfare official for retroactive benefits wrongfully withheld); see also Brandon v. Holt, 469 U.S. at ---, 105 S.Ct. at 877-79, 83 L.Ed.2d at 884-86. If, however, the plaintiff seeks damages from the state officer personally for redress of that officer’s particular unconstitutional acts, “[a]n award of damages against ... [that] official in his personal capacity can be executed only against the official’s personal assets.” Kentucky v. Graham, — U.S. at -, 105 S.Ct. at 3105, 87 L.Ed.2d at 121; see also Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (officers’ unconstitutional search and seizure).
With these principles in mind, we proceed to apply them to the facts of the instant case. Because it is clear that there has been no congressional waiver of the states’ immunity in this case, Quern v. Jordan, supra, we address only the claim that the State of Florida has waived its immunity.
B. Has Florida Waived its Eleventh Amendment Immunity to Suit in Federal Court?
In dismissing the instant case, the district court relied on Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam). In Florida Nursing Home, the Supreme Court held that HRS had not waived its Eleventh Amendment immunity to suit in federal court by virtue of a general waiver of sovereign immunity which stated that HRS was a “body corporate” with a capacity to “sue and be sued.” Id. at 149, 101 S.Ct. at 1033; see also Atascadero State Hospital, — U.S. at -, 105 S.Ct. at 3147, 87 L.Ed.2d at 179 (California’s constitutional provision that “[sjuits may be brought against the State in such manner and in such courts as shall be directed by law” does not waive Eleventh Amendment immunity); Tuveson v. Florida Governor’s Council on Indian Affairs, Inc., 734 F.2d 730, 734 (11th Cir.1984) (statute which provided that non-profit corporation can “[s]ue and be sued ... to the same extent as a natural person” did not constitute waiver of Eleventh Amendment immunity).
Gamble argues, however, that other, more specific, statutory provisions indicate that Florida has waived its sovereign immunity to § 1983 actions in federal court. Gamble first points to Fla.Stat.Ann. § 768.28 (West Supp.1985), the statutory enactment which represents a limited waiver of Florida’s sovereign immunity in tort actions. Section 768.28 authorizes recovery of tort damages against Florida or any of its agencies or subdivisions for “negligent or wrongful acts of any [state] employee while acting within the scope of his office or employment.” Fla.Stat.Ann. § 768.28(1). The statute reads in relevant part as follows:
Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions
(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. ...
(3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act....
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,-000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974....
(9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property....
(13) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section.
We believe that the above-quoted statutory provisions represent only a limited abrogation of Florida’s immunity; the waiver is limited to traditional torts, i.e., to circumstances in which the state would be liable if it were a private person. The waiver does not constitute consent to suit in federal court under § 1983. By declaring that “[t]he state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances,” Fla.Stat.Ann. § 768.28(5); accord Fla. Stat.Ann. § 768.28(1), the Florida legislature gave a strong indication that it did not intend to waive its immunity to civil rights actions. HRS argues persuasively that, by analogizing to suits against a “private individual,” the legislature intended to create sovereign liability for acts or omissions solely within the scope of traditional tort law. Moreover, the statute provides that the state or its agencies may be held liable “in accordance with the general laws of this state.” Fla.Stat.Ann. § 768.28(1). This is an explicit indication that the substantive law governing actions under § 768.28 is state law, not federal law as is the case in an action brought pursuant to § 1983. See Atascadero State Hospital v. Scanlon, — U.S. at -, 105 S.Ct. at 3147, 87 L.Ed.2d at 179 (“in order for a state statute ... to constitute a waiver of Eleventh Amendment immunity, it must specify the state’s intention to subject itself to suit in federal court ”) (emphasis in original). Finally, we note that the statute consistently refers to “tort action,” persons “liable in tort,” and the like without any mention that such terms include federal civil rights actions. We agree with HRS, therefore, that § 768.28, when viewed alone, was intended to render the state and its agencies liable for damages for traditional torts under state law, but to exclude such liability for “constitutional torts.” Accord Shinholster v. Graham, 527 F.Supp. 1318, 1332-33 (N.D.Fla.1981). Section 768.28 does not provide the express language or the overwhelming implications of waiver necessary to override Florida’s Eleventh Amendment immunity. See Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. at 1360.
Gamble urges us to consider two other statutory schemes which, she argues, unmistakeably indicate, when read in conjunction with § 768.28, that the waiver of sovereign immunity in § 768.28 includes damage actions against the state and its agencies under § 1983. First, Gamble directs the court to the Florida Casualty Insurance Risk Management Trust Fund Statute, Fla.Stat.Ann. § 284.30, et seq. (West Supp.1985). This statute provides:
A state self-insurance fund, designated as the “Florida Casualty Insurance Risk Management Trust Fund,” is created to be set up by the Department of Insurance and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.-33, for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S. C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state.... A party to a suit in any court, to be entitled to have his attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Insurance; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.
Fla.Stat.Ann. § 284.30 (emphasis added). The statute further provides:
The insurance risk management trust fund shall, unless specifically excluded by the Department of Insurance, cover all departments of the State of Florida and their employees, agents, and volunteers and shall provide separate accounts for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state....
Fla.Stat.Ann. § 284.31 (emphasis added).
Section 284.30 provides insurance in federal civil rights actions against the state. At first blush, this might appear to be an indication that Florida has indeed waived its Eleventh Amendment immunity in civil rights actions when it waived its state common law immunity to tort actions under § 768.28. However, by its words § 284.30 does no more than provide insurance to the extent that the state or its agencies might be liable in a § 1983 action. For example, as we have indicated in Part A., supra, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), a § 1983 plaintiff may enjoin unconstitutional state action if the responsible state agents are sued in their official capacities. As the court in Edel-man v. Jordan recognized, such prospective injunctive relief against state officers may ultimately require the expenditure of state funds to implement the court ordered remedy. Edelman, 415 U.S. at 667-68, 94 S.Ct. at 1357-58 (“But the fiscal consequences to state treasuries in these [injunc-tive relief] cases were the necessary result of compliance with decrees which by their terms were prospective in nature.... Such an ancillary effect on the state treasury is a permissible and often inevitable consequence of the principle announced in Ex parte Young....”). Section 284.30 would provide insurance to state agencies for the cost of the implementation of such prospective relief.
Similarly, the insurance provided for the payment of attorney’s fees is consistent with current Eleventh Amendment jurisprudence. In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court held that the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C.A. § 1988, was a congressional abrogation of the state’s Eleventh Amendment immunity with respect to the payment of attorney’s fees in civil rights actions. Thus, there is no Eleventh Amendment bar to the assessment of attorney’s fees against the state or its agencies.
Section 284.31, quoted above, merely reiterates the insurance coverage in federal civil rights actions and court-awarded attorney’s fees provided in § 284.30, and further provides that the insurance risk management fund account for these coverages separately. As we have indicated above, these sections are consistent with Eleventh Amendment jurisprudence, in that they provide insurance to state agencies for the cost of court-ordered prospective relief and attorney’s fees. While these statutory provisions do not explicitly earmark the insurance for the costs of prospective relief, to the exclusion of retrospective damage relief against the state or its agencies, there certainly is no “overwhelming implication[ ] from the text as ... [would] leave no room for any other reasonable construction,” Edelman, 415 U.S. at 673, 94 S.Ct. at 1360, that the state has waived its Eleventh Amendment immunity to damage actions.
There is, however, a section of the risk management trust fund statute which does explicitly provide for the payment of damage awards. This section provides:
Waiver of sovereign immunity; effect.
The insurance programs developed herein shall provide limits as established by the provisions of s. 768.28 if a tort claim. The limits provided in s. 768.28 shall not apply to a civil rights action under 42 U.S. C. s. 1983 or similar federal statute. Payment of a pending or future claim or judgment arising under any of said statutes may be made upon this act becoming a law, unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally; however, the fund is authorized to pay all other court-ordered attorney’s fees as provided under s. 284.31.
Fla.Stat.Ann. § 284.38 (emphasis added). This section carries forward the distinction, strongly delineated in the statute providing the state’s limited waiver of sovereign immunity (§ 768.28), between ordinary state tort claims, and constitutional and other federal civil rights claims. It states that the insurance programs developed under the Florida Casualty Insurance Risk Management Trust Fund are not to be construed to abrogate the monetary limits set in § 768.28. Moreover, the section explicitly states that the limits of § 768.28 “shall not apply to a federal civil rights action,” leaving the implication that § 768.28, while waiving traditional state common law tort immunity, simply has no application to civil rights actions. See Shinholster, 527 F.Supp. at 1334.
However, Gamble points to the unmistakable intent of this section to provide insurance for damage claims. We agree that this section may well provide insurance for damage claims because it refers to “[p]ayment of a pending or future claim or judgment.” Thus, the statute is less likely to be referring merely to funding the cost of prospective relief against officers and employees in their official capacities. Moreover, its reference to “any of said statutes” refers to § 1983 actions, as well as actions brought under § 768.28. Thus, Gamble maintains, it would be meaningless to provide insurance coverage for such damage claims, if the state did not intend to waive its Eleventh Amendment immunity to such claims. Although this argument has some appeal, we believe that this section provides insurance for damage judgments against state officers when sued in their individual capacities. This reading is supported by the fact that the section does not refer to the state or its agencies, but rather refers to state officers, employees, or agents. As we have indicated in Part A., supra, the Eleventh Amendment provides no bar to recovery of damages against state officers acting in their individual capacities. Cf. Kentucky v. Graham, — U.S. at -, 105 S.Ct. at 3106, 87 L.Ed.2d at 122 (“On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right”) (emphasis in original). Thus, the most reasonable reading of § 284.38 is that the state, through its risk management fund, will indemnify its officers, employees, or agents in § 1983 personal liability damage actions if they have not acted intentionally, i.e., in bad faith. The distinction drawn between tort actions and civil rights actions serves both to reiterate the strong distinction drawn in § 768.28, and to indicate that the monetary limits set out in § 768.28 should not limit the amount of insurance payable to officers, employees, or agents held liable for damages in their personal capacities under § 1983. In any event, there is surely no overwhelming implication from the text of § 284.38 that the state intended to waive its Eleventh Amendment immunity from damage actions.
Gamble also directs this court to Chapter 111 of the Florida Statutes which permits state agencies to defend actions against public officers. Section 111.07 provides:
Defense of civil actions against public officers, employees, or agents
Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Defense of such civil action includes, but is not limited to, any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of his rights secured under the Federal Constitution or laws. Legal representation of an officer, employee, or agent of a state agency may be provided by the Department of Legal Affairs. However, any attorney’s fees paid from public funds for any officer, employee, or agent who is found to be personally liable by virtue of acting outside the scope of his employment, or was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, may be recovered by the state, county, municipality, or political subdivision in a civil action against such officer, employee, or agent. If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant to this section to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney’s fees.
Fla.Stat.Ann. § 111.07 (West Supp.1985). Gamble again argues that this statute, because it envisions public defense of individual state officers in damage actions, indicates that Florida’s waiver of sovereign immunity under § 768.28 includes a waiver of Eleventh Amendment immunity in § 1983 damage actions. We reject this argument for the reasons stated above in our discussion of Chapter 284. Section 111.07 indicates that the state may provide a defense in “any civil rights lawsuit seeking relief personally against the officer, employee, or agent for an act or omission under color of state law, custom, or usage, wherein it is alleged that such officer, employee, or agent has deprived another person of his rights secured under the Federal Constitution or laws.” Fla.Stat.Ann. § 111.07 (emphasis added). By using the term “personally,” Chapter 111 is even more explicit than Chapter 284 in its reference to § 1983 suits against state officers in their personal capacities, suits which are unaffected by the state’s Eleventh Amendment immunity. In addition, § 111.07 indicates that attorney’s fees awards against state officers will be reimbursed by the state agency. See Hutto v. Finney, 437 U.S. at 693-700, 98 S.Ct. at 2574-2579 (attorney’s fees award against officer sued in official capacity will be paid by state). Compare Kentucky v. Graham, — U.S. -, 105 S.Ct. 3099, 87 L.Ed.2d 114 (in civil rights action against state officer in personal capacity, attorney
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Ian GORDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Ian GORDON, Defendant-Appellee.
Nos. 89-5003, 89-5038.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1989.
Decided Feb. 2, 1990.
Rehearing and Rehearing In Banc Denied March 31,1990.
Marvin David Miller, Alexandria, Va., for defendant-appellant.
Bernard James Apperson, III, Asst. U.S. Atty., Arlington, Va. (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and MURNAGHAN and WILKINS, Circuit Judges.
WILKINS, Circuit Judge:
Ian Gordon appeals his conviction of possession of cocaine with the intent to distribute. 21 U.S.C.A. § 841(a)(1) (West 1981). He claims violations of the fourth and fifth amendments and that the district court erroneously denied him offense level reductions for acceptance of responsibility and for being a minimal participant. The United States cross-appeals Gordon’s sentence claiming that the district court erroneously found Gordon to be a minor participant. We affirm the conviction but reverse and remand for resentencing.
I.
On September 14, 1988, Drug Enforcement Administration Special Agent Callahan and Loudoun County Deputy Becerra were engaged in general surveillance of passengers at Washington National Airport in Arlington, Virginia. They observed Gordon deplane from a Pan Am shuttle from New York. While the officers knew that New York was a “source city” for narcotics, they had no prior information about this particular flight or Gordon, nor did Gordon meet a “drug courier profile.”
Callahan and Becerra followed Gordon outside the terminal, where Callahan approached Gordon and explained that he was part of a Drug Enforcement Administration drug interdiction team. Callahan asked for and received permission to search Gordon’s bag. Finding no contraband, Callahan requested permission to “pat him down.” Gordon again gave verbal permission. Upon discovering a bulge in Gordon’s pocket, Callahan requested to see its contents. Although he claimed that the pocket contained only a sandwich, Gordon removed a small clear plastic bag partially wrapped in gray duct tape containing 249.-50 grams of white powder, which Callahan recognized to be cocaine. The officers placed Gordon under arrest and informed him of his Miranda rights.
When the officers asked Gordon if he would answer some questions he responded, “What do you want to know?” When asked the question, “Where were you taking this stuff?” Gordon shook his head in response. He was immediately transported to a nearby police station, a trip which Gordon concedes took no more than five minutes. Becerra testified that at the station he asked Gordon “if he was high, at which he said no. I asked him if he snorted or smoked cocaine. He said no.” When asked how Gordon indicated that he did not snort or smoke cocaine, Becerra stated that Gordon “made a negative gesture with his head.”
At a preliminary hearing, Gordon moved to suppress the cocaine as the product of an illegal search and seizure. He also moved to suppress any inculpatory statements made at the police station on the basis that their admission would violate his fifth amendment rights under Miranda. Both motions were denied and Gordon was subsequently convicted by a jury of possession with the intent to distribute cocaine.
At sentencing, Gordon admitted that he was guilty of simple possession of cocaine and requested a reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. However, on the advice of counsel he would not acknowledge that he possessed the cocaine with the intent to distribute. He refused to elaborate, expressing his desire to preserve any fifth amendment rights in the event of a successful appeal and retrial. He also requested a four-level reduction of his offense level, claiming that as a courier he was entitled to be classified as a minimal participant under section 3B1.2(a) of the guidelines. Over the government’s objection, the court granted Gordon a two-level reduction for being a minor participant. U.S.S.G, § 3B1.2(b). The resulting offense level of 18 with a criminal history category of I produced a guideline range of 27-33 months. The court sentenced Gordon to 27 months.
II.
On appeal, review of a district court determination regarding role in the offense is governed by the clearly erroneous standard. United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989) (determination that defendant was neither minimal nor minor participant is a factual question and due deference requires affirmance unless clearly erroneous); see United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir.1989); United States v, Wright, 873 F.2d 437 (1st Cir.1989); United States v. Nunley, 873 F.2d 182 (8th Cir.1989); United States v. Rojas, 868 F.2d 1409 (5th Cir.1989).
Gordon bases his claim that he was a minimal participant on the commentary to section 3B1.2 of the guidelines, which states that an offense level reduction for minimal participation would be appropriate “in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.” U.S.S.G. § 3B1.2, comment, (n.2). Gordon also argues that the government’s reference to him during the trial as a courier entitles him to a reduced offense level. However, as this circuit and the Fifth Circuit have held, the fact that a defendant is a drug courier does not automatically entitle him to a reduction. United States v. White, 875 F.2d 427, 434 (4th Cir.1989); see United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989). In Buenrostro the court, referring to the commentary cited by Gordon, stated that “[t]he example suggests that some couriers may appropriately receive the reduction; it does not suggest that all couriers are entitled to a downward adjustment.” Buenrostro, 868 F.2d at 138. In White we adopted the reasoning of Buenrostro and held that section 3B1.2 of the guidelines turns upon culpability, not courier status. White, 875 F.2d at 434. A defendant may be a courier without being less culpable than the other participants. Id. Gordon offered absolutely no evidence to support a finding that he was a minimal participant. Therefore, we affirm the refusal by the district court to grant Gordon a four-level reduction of his offense level on this basis.
In its cross-appeal, the government urges that Gordon was not entitled to the two-level reduction for minor participant status. Its position is simply that Gordon was apprehended while possessing, with the intent to distribute, a quantity of cocaine. The government had no knowledge of the source of the cocaine or that Gordon was involved in a conspiracy with others. At sentencing Gordon offered no evidence regarding the scope of his involvement with another participant or any other evidence on which the district court could base a finding of reduced culpability or involvement justifying his classification as a minor participant. Although Gordon correctly asserts that the number of defendants indicted does not determine whether there was more than one participant involved in the offense, there was no evidence here of participation by anyone else.
The government is correct that mitigating role adjustments apply only when there has been group conduct and a particular defendant is less culpable than other members of the group to such a degree that a distinction should be made at sentencing between him and the other participants. When seeking a mitigating adjustment, a defendant has the burden of proof to convince the district court of its application by a preponderance of the evidence. United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989). Since there are no facts in the record to support Gordon’s position, he is forced to rely on two conclusory statements, one by the prosecuting attorney and the other by the probation officer who prepared the presentence report. During trial, the prosecuting attorney referred to Gordon as a courier, and Gordon argues that this entitles him to be viewed as a minimal participant. Interestingly, Gordon continues to deny that he intended to deliver the cocaine to anyone, yet at the same time he contends that the government’s reference to him as a courier entitles him to a reduced offense level. Also, a worksheet prepared by the probation officer and submitted to the court recommended a two-level reduction as a minor participant. But, as we have previously held, the decision of the district court on whether to apply a particular guideline is not controlled by the probation officer’s recommendation. White, 875 F.2d at 431. Further, in paragraph 5 of the presentence report entitled “Defendant’s Role in the Offense,” it is reported that “[t]he defendant is solely responsible for the charge for which he is before the court.” The district court adopted the report in its statement of findings and reasons for the sentence imposed.
We are faced with a record devoid of any justification for the conclusion of the district court that “[t]he court finds that the base level should be reduced by 2 for the defendant’s role in the offense....” The court offered no explanation nor pointed to any fact to support its conclusion. See United States v. White, 888 F.2d 490, 495 (7th Cir.1989) (“Every sentence under the Guidelines must be supported by reasons.”).
Under the new sentencing system mandated by the Sentencing Reform Act of 1984, 18 U.S.C.A. §§ 3551, et seq. (West 1985 & Supp.1989), a request for the district court to find and apply an aggravating or mitigating factor when determining the appropriate guideline sentence must be based on some evidence. The moving party cannot meet his burden simply by offering conclusory statements. Here, the record is devoid of any evidence, aggravating or mitigating, other than that Gordon was simply a participant not entitled to any adjustment. See U.S.S.G. § 3B1.4. While the finding of the applicability of an aggravating or mitigating factor is protected on appeal by the clearly erroneous standard of review, this protection does not extend to a determination made without any factual foundation. To follow Gordon’s logic, everyone apprehended for possession with the intent to distribute cocaine under these circumstances would be entitled to a reduced offense level because of the general nature of the drug trade where contraband passes from its primary source to the ultimate user through a number of hands.
Consequently, because the district court erroneously applied a two-level reduction for minor role, we remand for resentencing within the sentencing guidelines range resulting from an offense level of 20 and a criminal history category of I.
III.
Gordon also argues that the district court erred by not reducing his offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1. Although at sentencing he did admit that he was guilty of simple possession of cocaine, he did not accept responsibility for his intent to distribute it. He maintains that to have done so would have rendered a successful appeal a hollow victory. He contends that in the event of retrial his admission to the probation officer and district court could be used against him to prove intent to distribute (a fact which Gordon has contested throughout). Gordon characterizes this as a Hobson’s choice between obtaining a reduction and preserving his right to appeal. He likens the choice to the impermissible situation where a defendant must choose to surrender one constitutional right to assert another one. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Gordon relies on United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989), and contends that it supports his position. Although we do not accept the holding and reasoning of Perez-Franco as correct, it nevertheless offers Gordon no support. In Perez-Franco, the First Circuit held that a defendant need only accept responsibility for the count to which he has pled guilty as part of a plea agreement. Id. at 463. We believe the approach taken by the Second and Fifth Circuits is correct and hold that in order for section 3E1.1 of the guidelines to apply, a defendant must first accept responsibility for all of his criminal conduct. See United States v. Moskowitz, 888 F.2d 223 (2d Cir.1989); United States v. Tellez, 882 F.2d 141 (5th Cir.1989). However, a defendant is not penalized for failing to accept responsibility. Rather, acceptance of responsibility is a mitigating factor available under appropriate circumstances.
Gordon further argues that the district judge’s comment that “I don’t really view acceptance of responsibility as a post-guilty finding or plea factor” indicated that he believed that acceptance of responsibility would never be available as a mitigating factor after trial. However, in holding that Gordon was not entitled to the reduction, the district judge also stated that “I don’t think he is automatically denied the two points merely because he goes to trial.” The district court found that Gordon had done nothing to indicate his acceptance of responsibility. Indeed, Gordon’s claim that he was entitled to this mitigating factor while at the same time denying the criminal conduct for which he- was convicted by a jury borders on the frivolous.
The determination of whether to give a reduction under section 3E1.1 of the guidelines is a factual one reviewable under the clearly erroneous standard. United States v. White, 875 F.2d 427, 431 (4th Cir.1989). The sentencing judge is in “a unique position to carefully examine the particular circumstances of each case.” Id. As the district court correctly pointed out, the timeliness of the defendant’s conduct in accepting responsibility is a consideration. U.S.S.G. § 3E1.1, comment, (n. 1(g)). There is nothing in the record to indicate that Gordon was entitled to the reduction for acceptance of responsibility except for his counsel’s assertion that he was sincere in accepting his guilt for simple possession of cocaine. The district court did not clearly err in denying Gordon the reduction for acceptance of responsibility.
IV.
Gordon also challenges the denial of his motion to suppress the cocaine by first arguing that he was “seized” in violation of his rights under the fourth amendment. But, before addressing the constitutional issue, we must first resolve the issue of whether a seizure took place. This determination is a question of fact subject to a clearly erroneous standard on appeal. United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982). In determining whether a person has been “seized,” the issue is whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion)). We have frequently used this standard in reviewing district court decisions. See United States v. Gray, 883 F.2d 320, 322 n. 2 (4th Cir.1989).
Gordon argues that because the officers had no justification for interfering with his travel this encounter was a seizure. However, the fact that Gordon did not meet a “drug courier profile” and the officers had no other reason to suspect Gordon does not mandate that the officers were prohibited from having a brief police-citizen encounter. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (fourth amendment not violated when law enforcement officers merely approach an individual in public and ask him to answer some questions). In fact, it is only when an encounter is classified as a seizure that the court must determine whether there was a reasonable suspicion. United States v. Harrison, 667 F.2d 1158, 1160 (4th. Cir.), cert. denied, 457 U.S. 1121, 102 S.Ct. 2937, 73 L.Ed.2d 1335 (1982).
Gordon argues that an Arlington County, Virginia, ordinance making it a misdemeanor for a person in a public place to refuse to identify himself when requested to do so by a law enforcement officer and the fact that his father was a former police officer who taught him to respect and obey law enforcement personnel demonstrate that he believed that he was not free to leave. But Gordon misinterprets the Mendenhall objective test of whether a reasonable person under the circumstances would have believed that he was not free to leave.
As Gordon testified, the officers were polite and quiet, did not instruct him that he could not leave, did nothing to prevent him from leaving, and did not tell him that he must permit the search. Based on all the facts and circumstances, the district court was not clearly erroneous in finding that there was not a seizure of Gordon’s person.
Gordon also challenges the voluntariness of the search. The voluntariness of a defendant’s consent to a search is a factual question determined in light of the totality of the circumstances and should be upheld unless clearly erroneous. United States v. Peterson, 524 F.2d 167, 178 (4th Cir.1975) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). Moreover, the government need not demonstrate that the defendant knew of the right to refuse to consent for the search to be deemed a voluntary one. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59. When the officer discovered a bulge in Gordon’s pocket, he asked Gordon what the pocket contained. When Gordon replied, “A sandwich,” the officer asked to see it. Gordon then removed the bag of cocaine from his pocket. The district court was correct in finding that this was a voluntary search.
V.
Gordon also argues that shaking his head in a negative manner in response to a question at the police station of whether he used cocaine, thus implying that the cocaine may not be for personal use, was obtained in violation of his fifth amendment right against self-incrimination. Gordon characterizes the shaking of his head after being asked at the airport where he was taking the cocaine as ending the interrogation so that a subsequent question at the police station without renewed warnings did not “scrupulously honor” his “right to cut off questioning” under Miranda as interpreted by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Gordon’s reliance on Mosley is misplaced. Mosley held that the principles of Miranda were not violated when, after a defendant had terminated an interrogation and a significant amount of time had elapsed before another officer sought to question the defendant about an unrelated crime, the Miranda warnings were given again. Here, only a few minutes had passed between the Miranda warnings at the airport and the questioning at the police station. Under these circumstances, it was unnecessary for the officers to recite the Miranda warnings again.
Additionally, the finding by the district court that Gordon did not indicate that he was terminating the interrogation is fully supported by the evidence. In response to whether he would answer questions, Gordon asked, “What do you want to know?” When asked where he was taking the cocaine, he replied by shaking his head. Reasonable interpretations of this act are that he did not know or that he did not intend to answer that question — not that he was refusing to answer other questions. We agree with the district court that Gordon did not indicate that he intended to conclude all questioning. The dissent would hold that Gordon did not waive his Miranda rights. However, a waiver “need not be explicit, but may be inferred from all of the circumstances.” United States v. Hicks, 748 F.2d 854, 859 (4th Cir.1984); see also North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979) (“The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.”). Here, Gordon indicated that he understood his rights, did not request counsel, and when asked whether he would answer some questions, responded by asking “what do you want to know.” All of the circumstances support the conclusion by the district court that Gordon waived his rights, a finding which we cannot say was clearly erroneous. See United States v. Smith, 608 F.2d 1011, 1013 (4th Cir.1979). Additionally, his statement at the police station was freely and voluntarily made and not in violation of his fifth amendment right against self-incrimination.
AFFIRMED in part; REVERSED in part; and REMANDED.
. The language of Chapter Three, Part B, Role in the Offense, requires that for an aggravating or mitigating adjustment to apply, evidence of group conduct is necessary. In addition, a defendant’s role in the offense should be weighed against the elements of the offense of conviction. Daughtrey, 874 F.2d at 216.
. Gordon offered no evidence to show that he was aware of this ordinance at the time of his arrest.
. The dissent indicates puzzlement by a discussion of Mosley. However, in his brief Gordon relied heavily on Mosley and urged this court to hold that he had terminated the interrogation at the airport and, thus, because the agents did not inform him of his Miranda rights a second time before beginning questioning at the police station, his Miranda rights were not scrupulously honored.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_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.
LAMB’S CHAPEL et al. v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al.
No. 91-2024.
Argued February 24, 1993
Decided June 7, 1993
Jay Alan Sekulow argued the cause for petitioners. With him on the briefs were Keith A. Fournier, Mark N. Troobnick, James M. Henderson, Sr., Jordan W. Lorence, Thomas Patrick Monaghan, Walter M. Weber, and John Stepanovich.
John W. Hoefling argued the cause for respondents. With him on the brief for respondents Center Moriches Union Free School District et al. was Ross Paine Masler. Respondent Robert Abrams, Attorney General of New York, filed a brief pro se. With him on the brief were Jerry Boone, Solicitor General, and Lillian Z. Cohen and Jeffrey I. Slonim, Assistant Attorneys General.
Briefe of amici curias urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Edward C. DuMont, Anthony J. Steinmeyer, and Lowell V. Sturgill, Jr.; for the American Civil Liberties Union et al. by David H. Remes, T. Jeremy Gunn, Stevm R. Shapiro, John A Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Laurence Gold, and Walter A Kamiat; for the Christian Legal Society et al. by Kimberlee Wood Colby, Steven T. McFarland, Bradley P. Jacob, and Karon Owen Bowdre; for Concerned Women for America et al. by Wendell R. Bird and David J. Myers; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; and for the Rutherford Institute by James J. Knicely and John W. Whitehead.
Jay Worona, Pilar Sokol, and Louis Grumet filed a brief for the New York State School Boards Association et al. as amici curiae urging affirmance.
Justice White
delivered the opinion of the Court.
New York Edue. Law §414 (McKinney 1988 and Supp. 1993) authorizes local school boards to adopt reasonable regulations for the use of school property for 10 specified purposes when the property is not in use for school purposes. Among the permitted uses is the holding of “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public.” § 414(c). The list of permitted uses does not include meetings for religious purposes, and a New York appellate court in Trietley v. Board of Ed. of Buffalo, 409 N. Y. S. 2d 912, 915 (App. Div. 1978), ruled that local boards could not allow student bible clubs to meet on school property because “[r]eligious purposes are not included in the enumerated purposes for which a school may be used under section 414.” In Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F. 2d 79, 88-84 (1991), the Court of Appeals for the Second Circuit accepted Trietley as an authoritative interpretation of state law. Furthermore, the Attorney General of New York supports Trietley as an appropriate approach to deciding this case.
Pursuant to §414’s empowerment of local school districts, the Board of Center Moriches Union Free School District (District) has issued rules and regulations with respect to the use of school property when not in use for school purposes. The rules allow only 2 of the 10 purposes authorized by §414: social, civic, or recreational uses (Rule 10) and use by political organizations if secured in compliance with §414 (Rule 8). Rule 7, however, consistent with the judicial interpretation of state law, provides that “[t]he school premises shall not be used by any group for religious purposes.” App. to Pet. for Cert. 57a.
The issue in this case is whether, against this background of state law, it violates the Free Speech Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, to deny a church access to school premises to exhibit for public viewing and for assertedly religious purposes, a film series dealing with family and child-rearing issues faced by parents today.
I
Petitioners (Church) are Lamb’s Chapel, an evangelical church in the community of Center Moriches, and its pastor John Steigerwald. Twice the Church applied to the District for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson. A brochure provided on request of the District identified Dr. Dob-son as a licensed psychologist, former associate clinical professor of pediatrics at the University of Southern California, best-selling author, and radio commentator. The brochure stated that the film series would discuss Dr. Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage. The brochure went on to describe the contents of each of the six parts of the series. The District denied the first application, saying that “[t]his film does appear to be church related and therefore your request must be refused.” App. 84. The second application for permission to use school premises for showing the film series, which described it as a “Family oriented movie — from a Christian perspective,” id., at 91, was denied using identical language.
The Church brought suit in the District Court, challenging the denial as a violation of the Freedom of Speech and Assembly Clauses, the Free Exercise Clause, and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. As to each cause of action, the Church alleged that the actions were undertaken under color of state law, in violation of 42 U. S. C. § 1983. The District Court granted summary judgment for respondents, rejecting all the Church’s claims. With respect to the free-speech claim under the First Amendment, the District Court characterized the District’s facilities as a “limited public forum.” The court noted that the enumerated purposes for which §414 allowed access to school facilities did not include religious worship or instruction, that Rule 7 explicitly proscribes using school facilities for religious purposes, and that the Church had conceded that its showing of the film series would be for religious purposes. 770 F. Supp. 91, 92, 98-99 (EDNY 1991). The District Court stated that once a limited public forum is opened to a particular type of speech, selectively denying access to other activities of the same genre is forbidden. Id., at 99. Noting that the District had not opened its facilities to organizations similar to Lamb’s Chapel for religious purposes, the District Court held that the denial in this case was viewpoint neutral and, hence, not a violation of the Freedom of Speech Clause. Ibid. The District Court also rejected the assertion by the Church that denying its application demonstrated a hostility to religion and advancement of nonreligion not justified under the Establishment of Religion Clause of the First Amendment. 736 F. Supp. 1247, 1253 (1990).
The Court of Appeals affirmed the judgment of the District Court “in all respects.” 959 F. 2d 381, 389 (CA2 1992). It held that the school property, when not in use for school purposes, was neither a traditional nor a designated public forum; rather, it was a limited public forum open only for designated purposes, a classification that “allows it to remain non-public except as to specified uses.” Id., at 386. The court observed that exclusions in such a forum need only be reasonable and viewpoint neutral, ibid., and ruled that denying access to the Church for the purpose of showing its film did not violate this standard. Because the holding below was questionable under our decisions, we granted the petition for certiorari, 506 U. S. 813 (1992), which in principal part challenged the holding below as contrary to the Free Speech Clause of the First Amendment.
II
There is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985); Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 46 (1983); Postal Service v. Council of Green- burgh Civic Assns., 453 U. S. 114, 129-130 (1981); Greer v. Spock, 424 U. S. 828, 836 (1976); Adderley v. Florida, 385 U. S. 39, 47 (1966). It is also common ground that the District need not have permitted after-hours use of its property for any of the uses permitted by N. Y. Educ. Law §414. The District, however, did open its property for 2 of the 10 uses permitted by § 414. The Church argued below that because under Rule 10 of the rules issued by the District, school property could be used for “social, civic, and recreational” purposes, the District had opened its property for such a ivide variety of communicative purposes that restrictions on communicative uses of the property were subject to the same constitutional limitations as restrictions in traditional public forums such as parks and sidewalks. Hence, its view was that subject matter or speaker exclusions on District property were required to be justified by a compelling state interest and to be narrowly drawn to achieve that end. See Perry, supra, at 45; Cornelius, supra, at 800. Both the District Court and the Court of Appeals rejected this submission, which is also presented to this Court. The argument has considerable force, for the District’s property is heavily used by a wide variety of private organizations, including some that presented a “close question,” which the Court of Appeals resolved in the District’s favor, as to whether the District had in fact already opened its property for religious uses. 959 F. 2d, at 387. We need not rule on this issue, however, for even if the courts below were correct in this respect — and we shall assume for present purposes that they were — the judgment below must be reversed.
With respect to public property that is not a designated public forum open for indiscriminate public use for communicative purposes, we have said that “[cjontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U. S., at 806, citing Perry Education Assn., supra, at 49. The Court of Appeals appeared to recognize that the total ban on using District property for religious purposes could survive First Amendment challenge only if excluding this category of speech was reasonable and viewpoint neutral. The court’s conclusion in this ease was that Rule 7 met this test. We cannot agree with this holding, for Rule 7 was unconstitutionally applied in this ease.
The Court of Appeals thought that the application of Rule 7 in this ease was viewpoint neutral because it had been, and would be, applied in the same way to all uses of school property for religious purposes. That all religions, and all uses for religious purposes are treated alike under Rule 7, however, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.
There is no suggestion from the courts below or from the District or the State that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by Rule 10. That subject matter is not one that the District has placed off limits to any and all speakers. Nor is there any indication in the record before us that the application to exhibit the particular film series involved here was, or would have been, denied for any reason other than the fact that the presentation would have been from a religious perspective. In our view, denial on that basis was plainly invalid under our holding in Cornelius, supra, at 806, that
“[although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum ... or if he is not a member of the class of speakers for whose especial benefit the forum was created ..., the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”
The film series involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the series dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984). That principle applies in the circumstances of this case; as Judge Posner said for the Court of Appeals for the Seventh Circuit, to discriminate “against a particular point of view ... would ... flunk the test... [of] Cornelius, provided that the defendants have no defense based on the establishment clause.” May v. Evansville-Vanderburgh School Corp., 787 F. 2d 1105, 1114 (1986).
The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the First Amendment. This Court suggested in Widmar v. Vincent, 454 U. S. 263, 271 (1981), that the interest of the State in avoiding an Establishment Clause violation “may be [a] compelling” one justifying an abridgment of free speech otherwise protected by the First Amendment; but the Court went on to hold that permitting use of university property for religious purposes under the open access policy involved there would not be incompatible with the Court’s Establishment Clause eases.
We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental. As in Widmar, supra, at 271-272, permitting District property to be used to exhibit the film series involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971): The challenged governmental action has a secular purpose, dóes not have the principal or primary effect of advancing or inhibiting religion, and does not foster an excessive entanglement with religion.
The District also submits that it justifiably denied use of its property to a “radical” church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence. Brief for Respondent Center Moriches Union Free School District et al. 4-5, 11-12, 24. There is nothing in the record to support such a justification, which in any event would be difficult to defend as a reason to deny the presentation of a religious point of view about a subject the District otherwise opens to discussion on District property.
We note that the New York State Attorney General, a respondent here, does not rely on either the Establishment Clause or possible danger to the public peace in supporting the judgment below. Rather, he submits that the exclusion is justified because the purpose of the access rules is to promote the interests of the public in general rather than sectarian or other private interests. In light of the variety of the uses of District property that have been permitted under Rule 10, this approach has its difficulties. This is particularly so since Rule 10 states that District property may be used for social, civic, or recreational use “only if it can be non-exclusive and open to all residents of the school district that form á homogeneous group deemed relevant to the event.” App. to Pet. for Cert. 57a. At least arguably, the Rule does not require that permitted uses need be open to the public at large. However that may be, this was not the basis of the judgment that we are reviewing. The Court of Appeals, as we understand it, ruled that because the District had the power to permit or exclude certain subject matters, it was entitled to deny use for any religious purpose, including the purpose in this case. The Attorney General also defends this as a permissible subject-matter exclusion rather than a denial based on viewpoint, a submission that we have already rejected.
The Attorney General also argues that there is no express finding below that the Church’s application would have been granted absent the religious connection. This fact is beside the point for the purposes of this opinion, which is concerned with the validity of the stated reason for denying the Church’s application, namely, that the film series sought to be shown “appeared to be church related.”
For the reasons stated in this opinion, the judgment of the Court of Appeals is
Reversed.
Section 414(e) authorizes the use of school property “[flor polling places for holding primaries and elections and for the registration of voters and for holding political meetings. But no meetings sponsored by political organizations shall be permitted unless authorized by a vote of a district meeting, held as provided by law, or, in cities by the board of education thereof”
Shortly before the first of these requests, the Church had applied for permission to use school rooms for its Sunday morning services and for Sunday School. The hours specified were 9 a.m. to 1 p.m. and the time period one year beginning in the next month. 959 F. 2d 381, 383 (CA2 1992). Within a few days the District wrote petitioners that the application “requesting use of the high school for your Sunday services” was denied, citing both N. Y. Educ. Law §414 and the District’s Rule 7 barring uses for religious purposes. The Church did not challenge this denial in the courts and the validity of this denial is not before us.
“Turn Your Heart Toward Home is available now in a series of six discussion-provoking films:
“1) A FATHER LOOKS BACK emphasizes how swiftly time passes and appeals to all parents to ‘turn their hearts toward home’ during the all-important child-rearing years. (60 minutes.)
“2) POWER IN PARENTING: THE YOUNG CHILD begins by exploring the inherent nature of power, and offers many practical helps for facing the battlegrounds in child-rearing — bedtime, mealtime and other confrontations so familiar to parents. Dr. Dobson also takes a look at areas of conflict in marriage and other adult relationships. (60 minutes.)
“3) POWER IN PARENTING: THE ADOLESCENT discusses father/ daughter and mother/son relationships, and the importance of allowing children to grow to develop as individuals. Dr. Dobson also encourages parents to free themselves of undeserved guilt when their teenagers choose to rebel. (45 minutes.)
“4) THE FAMILY UNDER FIRE views the family in the context of today’s society, where a “civil war of values” is being waged. Dr. Dobson urges parents to look at the effects of governmental interference, abortion and pornography, and to get involved. To preserve what they care about most — their own families! (52 minutes.)
Note: This film contains explicit information regarding the pornography industry. Not recommended for young audiences.
“5) OVERCOMING A PAINFUL CHILDHOOD includes Shirley Dobson’s intimate memories of a difficult childhood with her alcoholic father. Mrs. Dobson recalls the influences which brought her to a loving God who saw her personal circumstances and heard her cries for help. (U0 minutes.)
“6) THE HERITAGE presents Dr. Dobson's powerful closing remarks. Here he speaks clearly and convincingly of our traditional values which, if properly employed and defended, can assure happy, healthy, strengthened homes and family relationships in the years to come. (60 minutes.)”' App. 87-88.
The petition also presses the claim by the Church, rejected by both courts below, that the rejection of its application to exhibit its film series violated the Establishment Clause because it and Rule 7’s categorical refusal to permit District property to be used for religious purposes demonstrate hostility to religion. Because we reverse on another ground, we need not decide what merit this submission might have.
In support of its case in the District Court, the Church presented the following sampling of the uses that had been permitted under Rule 10 in 1987 and 1988:
“A New Age religious group known as the “Mind Center’
Southern Harmonize Gospel Singers
Salvation Army Youth Band
Hampton Council of Churches’ Billy Taylor Concert
Center Moriches Co-op Nursery School’s Quilting Bee
Manorville Humane Society’s Chinese Auction
Moriches Bay Power Squadron Unkechaug Dance Group
Paul Gibson’s Baseball Clinic
Moriches Bay Civic Association
Moriches Chamber of Commerce’s Town Fair Day
Center Moriches Drama Club
Center Moriches Music Award Associations’ ‘Amahl & the Night Visitors’
Saint John’s Track and Field Program
Girl Scouts of Suffolk [C]ounty
Cub Scouts Pack 23
Boy Scout Troop #414.” 770 F. Supp. 91, 93, n. 4 (EDNY 1991).
The Church claimed that the first three uses listed above demonstrated that Rule 10 actually permitted the District property to be used for religious purposes as well as a great assortment of other uses. The first item listed is particularly interesting and relevant to the issue before us. The District Court referred to this item as “a lecture series by the Mind Center, purportedly a New Age religious group.” Id., at 93. The Court of Appeals described it as follows:
“The lecture series, ‘Psychology and The Unknown,’ by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huek testified that he lectured principally on parapsychology, which he defined by ‘reference to the human unconscious, the mind, the unconscious emotional system or the body system.’ When asked whether his lecture involved matters of both a spiritual and a scientific ñatee, Mr. Huck responded: ‘It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].’ Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as ‘a fascinating sideline’ and ‘not the purpose of the [lecture].’” 959 F. 2d, at 388.
Although the Court of Appeals apparently held that Rule 7 was reasonable as well as viewpoint neutral, the court uttered not a word in support of its reasonableness holding. If Rule 7 were to be held unreasonable, it could be held facially invalid, that is, it might be held that the rule could in no circumstances be applied to religious speech or religious communicative conduct. In view of our disposition of this case, we need not pursue this issue.
While we are somewhat diverted by Justice Scalia’s evening at the cinema, post, at 398-399, we return to the reality that there is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled. This case, like Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987), presents no occasion to do so. Justice Scalia apparently was less haunted by the ghosts of the living when he joined the opinion of the Court in that case.
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_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
GRANITO v. UNITED STATES.
No. 10564.
United States Court of Appeals District of Columbia Circuit.
Argued June 19, 1950.
Decided July 3, 1950.
Mr. Hans A. Nathan, Washington, D. C., for appellant.
Mr. Richard M. Roberts, Asst. U. S. Atty, Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty, Harold H. Bacon and Joseph M. Howard, Asst. U. S. Attys, all of Washington, D. C., were on the brief, for appellee.
Before CLARK, PROCTOR, and BAZELON, Circuit Judges.
PER CURIAM.
We find no error in the record on this appeal. The credibility of the complaining witness’ story of how appellant unlawfully came into possession of his automobile was a matter peculiarly within the province of the jury. Likewise the court’s instructions were in all respects adequate for the purposes of this case.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_counsel2
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E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Bruce Loren LATIMER, Defendants-Appellant.
No. 91-50420.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 17, 1992.
Decided April 26, 1993.
Canton F. Gunn, Asst. Federal Public Defender, Los Angeles, CA, for defendant-appellant.
John J. Byrne, Jr., Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
Before: NORRIS, REINHARDT, and TROTT, Circuit Judges.
WILLIAM A. NORRIS, Circuit Judge:
Appellant Bruce Latimer challenges his classification as a career offender under § 4B1.1 of the Sentencing Guidelines following his 1991 conviction for armed bank robbery and for use of a firearm during a crime of violence. Because he was designated a career offender by the district court, Latimer was sentenced to a period of 26 years and 10 months in prison, followed by a 5-year term of supervised release. Of Latimer's nearly 27 years in prison, 15 of these years came solely as a result of his being classified as a career offender.
Whether Latimer is to be imprisoned an additional 15 years as a career offender turns, principally, on whether confinement in a community treatment center constitutes incarceration under the meaning of § 4A1.2(e)(1) of the Sentencing Guidelines. Because we hold that confinement in a community treatment center does not fall within the ambit of this provision, we reverse and remand for resentencing.
I
A defendant qualifies as a career offender if the present offense is a crime of violence and if the defendant has two prior convictions for crimes of violence. U.S.S.G. § 4B1.1. A prior conviction may be counted only if the conviction resulted in the defendant's incarceration during any part of the 15 years prior to the commission of the present offense. Id. at § 4A1.2(e)(1).
Latimer does not dispute that his current offense, armed bank robbery, is a crime of violence. Nor does he dispute that he has one prior conviction which may be counted toward career offender status. Latimer's challenge is to the district court's decision to count several bank robberies he committed in 1967 as falling within the 15-year window.
The question now before us is whether Latimer's confinement in a community treatment center for three months in 1979, following the revocation of his parole on his 1967 convictions, constituted incarceration under the meaning of § 4A1.2(e)(1). If it did, then Latimer was properly classified as a career offender; if it did not, then he was sentenced to prison for 15 years longer than he deserves.
The government suggests two possible alternative grounds on which to base a finding that Latimer was incarcerated in connection with his 1979 parole revocation. First, the government argues that Latimer's three-month detention in the Utah Community Improvement Program, a community treatment center, following the revocation of his parole should be counted as incarceration under the Guidelines. In the alternative, the government notes that La-timer was detained for a period of time in a federal prison-first while he was awaiting his parole revocation hearing, and then while awaiting his subsequent transfer to the community treatment center-and argues that this detention should satisfy the meaning of incarceration under § 4A1.2(e)(l). We address each of the government’s arguments in turn.
II
Because Latimer challenges the application of the sentencing guidelines to undisputed facts, our review is de novo. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990).
Section 4A1.2(e)(l) sets forth the time period within which a prior sentence must have been imposed or served to count towards a defendant’s criminal history score. It provides that a district court may count a prior conviction only if the conviction resulted in the defendant’s incarceration or imprisonment — the Commission uses the words interchangeably — during any part of the fifteen years prior to the commission of the present offense:
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
U.S.S.G. § 4A1.2(e)(l).
The Guidelines also state that, when a prison sentence is reinstated upon revocation of parole, the district court should “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” Id. at § 4A1.2(k)(l) (emphasis added). The two periods of imprisonment are counted as a single prison sentence for purposes of criminal history scoring, and for purposes of deciding whether that sentence falls within the applicable 15-year window. Id. at § 4A1.2(k)(2)(B). See United States v. Harrington, 923 F.2d 1371, 1375 (9th Cir.), cert. denied, — U.S.-, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991). Thus, in cases where a defendant’s prison sentence is reinstated after revocation, of parole, the original sentence is counted only if “the date of last release from incarceration on [the post-revocation] sentence” falls within the 15-year period. U.S.S.G. § 4A1.2(k)(2)(B) (emphasis added).
If Latimer’s detention in a community treatment center is properly characterized as incarceration, then the date of his “last release” from the community treatment center brings the 1967 convictions within the 15-year window, and thus brings La-timer within the definition of a career offender. The question of whether community treatment center detention constitutes “incarceration” under the meaning of section 4A1.2(e)(l) is one of first impression in our circuit.
A
Unfortunately, other than equating a “sentence of incarceration” with a “sentence of imprisonment,” see id. at § 4A1.2(b)(l), the Guidelines do not define incarceration. Nor do they address whether detention in a community treatment center qualifies as incarceration. However, the Commission’s silence on this question does not, and cannot, end the inquiry. In the absence of any clear expression of Commission intent, we must choose the interpretation that best fits the Guidelines’ general structure and purposes.
At the outset of our inquiry, we find it significant that, in numerous provisions of the Guidelines, the Commission differentiates between imprisonment and non-imprisonment sentences (or, alternatively, between incarceration and non-incarceration sentences) based on the nature of the facility in which the confinement is served. In particular, the Commission repeatedly draws a sharp distinction between confinement in a community treatment center or halfway house and confinement in a conventional prison facility.
For instance, in setting forth the formula for calculating a defendant’s criminal history category, § 4A1.1 and its commentary add a different number of points to a defendant’s criminal history score depending not only on the length of the prior confinement, but also on the location of the prior confinement. Sentences of “imprisonment” are classified according to the amount of time the defendant spent in prison, and they are scored accordingly — 3 points if the imprisonment exceeded 1 year and 1 month; 2 points if the imprisonment was for greater than 60 days but less than 1 year and 1 month; and 1 point if the imprisonment was for less than 60 days. See U.S.S.G. § 4Al.l(a)-(c), and comment (Background). In contrast with this three-tiered scoring structure for imprisonment sentences, a sentence served in a halfway house is in every case scored only 1 point— regardless of whether the defendant served 5 days or 5 years in confinement. Id. at § 4Al.l(c).
Although the Guidelines do not directly specify the number of points that are to be added for sentences to a community treatment center, the Commission indicates elsewhere in the Guidelines that it regards halfway houses and community treatment centers as roughly equivalent forms of punishment. See U.S.S.G. § 5F1.1, comment (n. 1) (“ ‘Community confinement’ means residence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility.”). Accordingly, in the absence of any indications to the contrary, we must assume that the Commission meant to classify confinement in a community treatment center under the same category as confinement in a halfway house, thus adding only 1 criminal history point for each prior term of confinement.
The Guidelines’ scoring system — adding as many as 3 points for each sentence of imprisonment, but only 1 point for a sentence served in a community treatment center or halfway house — is fully consistent with the Guidelines’ purposes. The point of the criminal history calculation is to quantify the defendant’s relative culpability, by measuring both the extent and seriousness of the defendant’s prior criminal record. The more serious a defendant’s prior crimes, the higher his criminal history score, and the longer his ultimate sentence. See U.S.S.G. § 4A (Introductory Commentary) (“A defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.”). Rather than trying to gauge the seriousness of each of the various crimes a defendant has committed, the Guidelines use a defendant’s prior sentences as a rough proxy for the severity of his offenses.
The fact that the Guidelines add only 1 point for each sentence served in a community treatment center reflects the Commission’s judgment that the crimes which result in community treatment center confinement are generally less serious (and thus say less about the defendant’s relative blameworthiness) than crimes which result in imprisonment. Whether the Commission’s judgment is sound or not is beside the point. What matters for our purposes is that, in scoring the two categories of punishment differently, the Commission makes clear that it regards confinement in a community treatment center or halfway house as qualitatively different from confinement in a prison.
This distinction is reinforced by § 2P1.1, which describes the base offense levels that attach to various crimes of escape. If a defendant escaped while being held in confinement following an arrest for a felony charge, or following any conviction, the base offense level is set at 13. U.S.S.G. § 2Pl.l(a)(l). If the escape occurred under any other circumstances (i.e., following a misdemeanor arrest), the base offense level is set at 8. Id. at § 2Pl.l(a)(2). However, the base offense level can be reduced in cases where the defendant escaped from “a community corrections center, community treatment center, ‘halfway house,’ or similar facility.” U.S.S.G. § 2Pl.l(b)(3). Section 2P1.1(b)(3) states:
(3) If the defendant escaped from the non-secure custody of a community corrections center, community treatment center, “halfway house,” or similar facility, ... decrease the offense level under subsection (a)(1) by 4 levels or the offense level under subsection (a)(2) by 2 levels.
Id. at § 2Pl.l(b)(3).
What is significant about this provision is that the offense level reduction applies exclusively to escapes from community confinement facilities, such as community treatment centers and halfway houses. Indeed, we have held along with our sister circuits that the reduction under § 2Pl.l(b)(3) is unavailable to prisoners who have escaped from prisons or prison camps, even if they escaped under circumstances qualifying as “non-secure custody.” United States v. McGann, 960 F.2d 846, 847 (9th Cir.), cert. denied, — U.S. — , 113 S.Ct. 276, 121 L.Ed.2d 204 (1992) (“The language of subsection 2Pl.l(b)(3) ... is limited to the non-secure custody of facilities like ‘community corrections centers], community treatment center[s], [and] “halfway house[s].” ’ The district court held that federal prison camps are generically different from the facilities listed in section 2P1.1(b)(3). Consequently, escapes from [prison] camps ... are not entitled to the sentencing reduction. We agree.”); see also United States v. Tapia, 981 F.2d 1194 (11th Cir.1993); United States v. Brownlee, 970 F.2d 764, 765-66 (10th Cir.1992). That such a reduction is unavailable to defendants who escape from prison facilities is indicative of the Commission’s view that escape from a prison is a more serious offense than escape from a community treatment center or halfway house.
Finally, the division between imprisonment and community treatment center confinement is emphasized again in § 5C1.1. For instance, § 5Cl.l(d) provides that when a defendant’s sentencing range is between 6 and 10 months, the court may impose either “(1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in § 5Cl.l(e), provided that at least one-half of the minimum term is satisfied by imprisonment.” U.S.S.G. § 501.1(d) (emphasis added). In other words, if the court opts for the lower end of the range, 6 months, it cannot impose a sentence of 6 months in a community treatment center; it must impose at least 3 months of prison time. The apparent concern — indeed, the only conceivable reason for such a rule — is that it would be too lenient to permit a defendant to serve his entire term in a community treatment center. The obvious implication is that community treatment centers and prisons are not interchangeable.
This same distinction is apparent in § 501.1(e)(2), where the Guidelines set forth the ratio at which a court may substitute community confinement for imprisonment (subject, of course, to the limitations imposed by § 5Cl.l(d)). This provision allows for the substitution of “[o]ne day of community confinement (residence in a community treatment center, halfway house, or similar residential facility) for one day of imprisonment.” U.S.S.G. § 501.1(e)(2) (emphasis added). The significance of this provision is not the rate of substitution it defines, but the fact that it defines one at all. For if confinement in a community treatment center were considered the equivalent of imprisonment, there would be no need to explain how the two modes of punishment could be substituted for one another. The inclusion of this provision once again demonstrates that the Commission views confinement in a community treatment center as qualitatively different from a sentence of imprisonment.
In sum, sections 4A1.1, 2P1.1, and 5C1.1 all differentiate confinement in a community treatment center or halfway house from confinement in a prison. Moreover, we find no references in the Guidelines to suggest that the Commission intended to equate the two for the purposes of section 4A1.2(e)(l). Accordingly, we interpret the term incarceration in § 4A1.2(e)(l) to exclude detention in a community treatment center or halfway house. Accord United States v. Jordan, 734 F.Supp. 687 (E.D.Pa.1990).
Our reading of § 4A1.2(e)(l) as not equating confinement in a community treatment center with incarceration also finds support in the rule of lenity. “The policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (quoting Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958)). The rule of lenity is rooted in “ ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ ” United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) (quoting H. Friendly, Benchmarks 209 (1967)).
Here, the Commission has not clearly said whether confinement in a community treatment center qualifies as incarceration. Yet, for Mr. Latimer — and no doubt for many others who will find themselves in his circumstances — our resolution of this semantic, and seemingly arcane, question determines whether he is to spend an additional 15 years of his life behind bars. In such a case, the rule of lenity compels us to resolve ambiguities in favor of the criminal defendant and adopt the interpretation imposing the lesser of the two penalties.
Accordingly, we hold that confinement in a community treatment center does not constitute incarceration under the meaning of § 4A1.2(e)(l).
B
In arguing that confinement in a community treatment center is the equivalent of incarceration under the meaning of § 4A1.2(e)(l), the government relies principally on the case of United States v. Vanderlaan, 921 F.2d 257 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1429, 113 L.Ed.2d 481 (1991). In Vanderlaan, the defendant argued that a sentence imposed under the Narcotic Addict Rehabilitation Act (“NARA”) should not be characterized as a sentence of incarceration because it is imposed primarily for the purpose of drug rehabilitation. The Tenth Circuit disagreed, holding that “the Guidelines make no distinction between offenders incarcerated primarily for rehabilitation and those incarcerated simply to remove the offender from society.” 921 F.2d at 259.
Vanderlaan is distinguishable from the case before us in two significant respects. First, the court in Vanderlaan had no occasion to address whether confinement in a community treatment center is the equivalent of incarceration. This is because the sentence imposed on Vanderlaan was not a sentence to a community treatment center, but instead a sentence of continuous confinement in a federal prison. 921 F.2d at 259. Indeed, the court made clear that the reason it distinguished Vanderlaan’s sentence from “other types of criminal sentences” not amounting to incarceration was because these other sentences “do not require that an offender be continuously confined in a federal institution.” 921 F.2d at 259. Thus, the holding in Vanderlaan is inapplicable to the case of community treatment center confinement, since community treatment centers are not federally-operated facilities, and they do not generally involve continuous, 24-hour confinement.
Moreover, our recognition that the Guidelines distinguish between incarceration and confinement in a community treatment center is not in tension with the Tenth Circuit’s reasoning in Vanderlaan. Van-derlaan stands for the proposition that the purposes for which an individual is confined are not dispositive of whether the confinement amounts to incarceration. Our decision today does not turn on the purposes for the defendant’s confinement, but rather on the facility in which the confinement is served. Simply put, if the facility of confinement is a community treatment center or halfway house, then the confinement does not amount to incarceration for purposes of § 4A1.2(e)(l).
Nor is our holding today in conflict with our prior decision in United States v. Schomburg, 929 F.2d 505 (9th Cir.1991). In Schomburg we held that a defendant’s prior sentence of sixty days in a county jail was properly classified as a “sentence of imprisonment” under § 4Al.l(b), even though the defendant ultimately served this sentence by participating in a weekend work project administered by the Sheriff. Although we acknowledged that the Sheriff had legal discretion to modify the defendant’s sentence, we held that it was “the sentence, as pronounced by the court at the outset” that determined its classification under the Guidelines. See id. at 507 (emphasis added).
By its terms, therefore, the holding in Schomburg applies only in cases where a court specifies a sentence of imprisonment. Here, there was no court-specified imprisonment. The sentence was imposed by the Parole Commission and the sentencing order explicitly recommended placement in a community treatment center.
C
Finally, we recognize that the government’s position is supported by United States v. Rasco, 963 F.2d 132 (6th Cir.), cert. denied, — U.S.-, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992), a case decided subsequent to the briefing in this case which held that a sentence to a halfway house constitutes incarceration under the Guidelines. Because we find the Sixth Circuit’s reasoning in Rasco to be unpersuasive, however, we respectfully decline to follow it.
In Rasco, the Sixth Circuit held, on facts quite similar to the ones here, that confinement in a halfway house following the revocation of parole constitutes incarceration under tlie meaning of § 4A1.2(e)(l) of the Guidelines. Ironically, the Sixth Circuit acknowledged that the Guidelines draw a distinction between confinement in a halfway house and confinement in a prison — the very distinction on which we base our holding. See 963 F.2d at 136-37 (“We recognize that [our] interpretation arguably conflicts with the background commentary to section 4A1.1 [_which] seems to equate confinement sentences with sentences of imprisonment and distinguish both from residency in a halfway house.”). Yet the court held that this distinction was superseded by another provision in the Guidelines — namely, § 4A1.2(k) — which it interpreted as treating all sentences imposed upon revocation of parole as sentences of imprisonment.
Section 4A1.2(k) provides that, in cases where a defendant’s parole is revoked, a court is to “add the original term of imprisonment to any term of imprisonment imposed upon revocation.” U.S.S.G. § 4A1.2(k)(l). This combined sentence is counted as a single sentence, and “used to compute the criminal history points for § 4Al.l(a), (b), or (c), as applicable.” Id. The commentary to § 4A1.2(k) explains that the reason the Guidelines combine the “original sentence” and the “sentence given upon revocation” is so that “no more than three points will be assessed for a single conviction, even if probation or conditional release was subsequently revoked.” Id. at § 4A1.2, comment (n. 11) (emphasis added).
The Sixth Circuit read section 4A1.2(k) and its commentary as an expression of
the Commission’s view that a sentence imposed upon revocation of parole, regardless of whether the sentence is served in prison, a halfway house, or a community treatment center, be added to the original term of imprisonment, requiring the sentencing court to count them as a single sentence for purposes of criminal history scoring.
Rasco, 963 F.2d at 135. The court thus held that “section 4A1.2(k) precludes a court from treating a sentence imposed upon revocation of parole as a distinct sentence deserving separate counting under section 4Al.l(a), (b), or (c).” Id.
As best we can tell, the Sixth Circuit’s reasoning appears to rest on the following proposition: that unless sentences to halfway houses and community treatment centers are characterized as “sentence[s] of imprisonment” under § 4A1.2(k), a situation could arise in which a defendant might receive more than three criminal history points for a single conviction. Because such a result appears to run contrary to the intention of the commentary, the court reasoned that the Commission must have intended all sentences imposed upon revocation — including sentences to a community treatment center or halfway house — to be classified as “sentence[s] of imprisonment” under § 4A1.2(k) and added to the original terms of imprisonment for purposes of criminal history scoring.
The Sixth Circuit’s reasoning has a certain logical appeal, but it rests on an unsupported, and unwarranted, assumption— that if a sentence imposed upon revocation of parole is not classified as imprisonment, then it automatically gets counted as a separate criminal sentence (which than adds an additional point to the defendant’s overall criminal history score). We see no basis for such an assumption. Section 4A1.2(k) is the only provision in the Guidelines that addresses the question of post-revocation sentences, and it says nothing about whether the courts are to add an additional point for non-imprisonment sentences imposed upon revocation of parole. In fact, it says nothing at all about non-imprisonment sentences, and thus we see no reason to read such a provision into the Guidelines.
We read section 4A1.2(k) to mean precisely what it says. It does not say that every sentence imposed upon revocation should be added to the original sentence of imprisonment, it says only that “term[s] of imprisonment” imposed upon revocation should be added to the original sentence. Indeed, this emphasis on imprisonment as the defining characteristic is reinforced further by § 4A1.2(k)(2)(B)(i), where the Guidelines measure the applicability of a revocation sentence by reference to “the date of last release from incarceration from such sentence.” U.S.S.G. § 4A1.2(k)(2)(B)(i) (emphasis added).
In sum, § 4A1.2(k) uses the terms “imprisonment” and “incarceration,” but it does not define these terms. The question remains whether the Commission meant to include confinement in a community treatment center or halfway house under the meaning of these terms, which we believe can only be answered by looking to other provisions of the Guidelines, as we have done in Part 1(A) supra.
Ill
In the alternative, the government argues that, even if detention in a community treatment center is not incarceration, Latimer was nevertheless incarcerated during the relevant time period because he was detained within a federal prison for approximately three months while he awaited the scheduling of his parole revocation hearing, and then for an additional two and a half weeks pending his subsequent transfer to the community treatment center. We disagree.
To characterize this period of detention as “incarceration” simply because the defendant was physically confined within the walls of a federal prison would subvert the purposes of the Guidelines. The reason the Guidelines focus on prior sentences of incarceration has nothing to do with the fact of incarceration per se, but rather with the reason behind the incarceration. The assumption is that crimes which result in incarceration are more serious than crimes which do not. And, thus, a defendant who has been incarcerated in the past is regarded as more culpable, and consequently more deserving of punishment, than one who has never been incarcerated.
However, when the reason behind a period of incarceration is administrative necessity, rather than an adjudication of guilt, this period of incarceration says nothing about the defendant’s culpability. Accordingly, it may not provide a basis for sentence enhancement.
In the instant case, the time Latimer spent in custody at the federal prison was entirely administrative in nature. Until La-timer’s parole was formally revoked by the Parole Commission, the justification for La-timer’s detention was not that he had violated his parole, but rather that he was suspected of violating his parole. This period of detention is thus analogous to pretrial custody. The consequences of eount-ing pre-revocation custody as incarceration would be unthinkable: defendants would have their sentences enhanced even if it were later determined at their hearings that they had not violated parole. Moreover, since under the old federal sentencing scheme defendants were entitled to release on bail pending the outcome of their parole revocation hearing, the length of a defendant’s future punishment could vary substantially based on the mere fortuity of whether he had been able to post bail. We cannot believe the Sentencing Commission intended such bizarre results. Accordingly, we hold that detention pending the outcome of a parole revocation determination does not constitute “incarceration” for purposes of section 4A1.2(e)(l).
Finally, we also reject the government’s attempt to characterize as incarceration the time Latimer spent in the penitentiary after his parole was revoked. In our view, this period of detention was analogous to pre-sentence custody when a defendant cannot post bail. In revoking Latimer’s parole, the parole commission explicitly recommended that he be “place[d] in a Community Treatment Center.” It appears from the record that it took two and a half weeks for the authorities to find an available community treatment center and finalize Latimer’s transfer. To punish Latimer with an additional 15 years of prison time for a delay caused by bureaucratic inefficiency would be an affront to basic notions of fairness and just punishment, a result surely not intended by the Guidelines.
Latimer’s sentence is VACATED and the case is REMANDED for resentencing.
. Latimer raises a number of other challenges to `both his conviction and his sentence. However, because his other claims do not present any novel questions of law, we decide them in an unpublished memorandum decision filed contemporaneously with this opinion.
. See also U.S.S.G. § 4A1.2(b)(l) ("The term ‘sentence of imprisonment' means a sentence of incarceration and refers to the maximum sentence imposed.”).
. Thus far, only the Sixth Circuit has had occasion to address this question, and it reached the opposite conclusion from the one we reach today. See United States v. Rasco, 963 F.2d 132 (6th Cir.), cert. denied, — U.S.-, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992). See our discussion infra at 1515-16.
. Section 4A1.1 directs the sentencing judge to add:
(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item.
U.S.S.G. § 4Al.l(a)-(c) (emphasis added).
The background commentary to section 4A1.1 equates “confinement sentences” with "sentences of imprisonment" and distinguishes both from residency in a halfway house:
Subdivisions (a), (b), and (c) of § 4A1.1 distinguish confinement sentences longer than one year and one month, shorter confinement sentences of at least sixty days, and all other sentences, such as confinement sentences of less than sixty days, probation, fines, and residency in a halfway house.
Id. at § 4A1.1, comment (Background) (emphasis added).
. The sentencing provision in NARA provides that a defendant may be confined in any institution within the federal penal system, including the federal penitentiaries. See 18 U.S.C. § 4251(c) and 1966 U.S.Code Cong. Si Adm. News, at 4245, 4247.
. If we assume that the original sentence and the revocation sentence would be counted separately, this result could occur in a case where the initial prison sentence on a conviction exceeded one year and one month (3 points, see § 4Al.l(a)) and the sentence imposed upon revocation was a sentence other than “imprisonment” (1 point, see § 4Al.l(c)). But see discussion at 4153.
. Perhaps we would accept the Sixth Circuit's assumption if it were either inherent in the logic, or indispensable to the structure, of the Guidelines. But it is neither logical nor indispensable. In fact, given that the Commission limits original sentences to a community treatment center to only a single criminal history point (whatever their length), we find it entirely plausible that the Commission intended to overlook post-revocation sentences to a community treatment center altogether in calculating the defendant's criminal history score. At the very least, we find nothing in § 4A1.2(k) that suggests otherwise.
. See 18 U.S.C. § 4214(a)(l)(A)(i-iv). These provisions have now been repealed because the Guidelines eliminate parole, but the provisions were in effect at the time of Latimer’s parole revocation hearing.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_lcdisposition
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
UNITED STATES v. DISTRICT COURT IN AND FOR WATER DIVISION NO. 5 et al.
No. 812.
Argued March 2, 1971
Decided March 24, 1971
MR. Justice Douglas delivered the opinion for a unanimous Court. Mr. Justice HarlaN, though joining in the opinion, filed a concurring statement, post, p. 530.
Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Samuel Huntington, and Edmund B. Clark.
Kenneth Balcomb argued the cause for respondents. With him on the brief was Robert L. McCarty.
Mr. Justice Douglas
delivered the opinion of the Court.
This is a companion case to the Eagle County case, ante, p. 520, and involves an action brought under a different state statute in the District Court of Colorado for Water Division No. 5. That court was given responsibility for water rights determinations affecting “all lands in the state of Colorado in the drainage basins of the Colorado river and all of its tributaries arising within Colorado, with the exception of the Gunnison river,” which includes the area of the Eagle River system.
Notice was served on the United States pursuant to 43 U. S. C. § 666 (b) and it moved to quash the service. That motion was denied. A writ of prohibition was sought in the Supreme Court and it was also denied. The case is here on a petition for a writ of certiorari which we granted. 400 U. S. 940.
The area covered by this suit includes vastly more extensive water rights than those involved in the Eagle County case. The Forest Service administers four separate national forests in the area: the White River, Arapaho, Routt, and Grand Mesa-Uncompahgre. The Department of the Interior, through the Bureau of Reclamation, the National Park Service, the Bureau of Land Management, the Bureau of Mines, and the Bureau of Sport Fisheries and Wildlife, makes use of water in Water Division No. 5 for national recreational and other purposes. The Department of the Navy administers certain naval petroleum and oil shale reserves which, if ever developed, would require water to accomplish the federal purpose for which the reservations were made.
The major issue — the scope of the consent-to-be-sued provision in 43 U. S. C. § 666 — has been covered in the Eagle County opinion and need not be repeated here.
It is emphasized, however, that the procedures under the new Act are much more burdensome on the Government than they were under the older Act. It is pointed out that the new statute contemplates monthly proceedings before a water referee on water rights applications. These proceedings, it is argued, do not constitute general adjudications of water rights because all the water users and all water rights on a stream system are not involved in the referee’s determinations. The only water rights considered in the proceeding are those for which an application has been filed within a particular month. It is also said that the Act makes all water rights confirmed under the new procedure junior to those previously awarded.
It is argued from those premises that the proceeding does not constitute a general adjudication which 43 U. S. C. § 666 contemplated. As we said in the Eagle County case, the words “general adjudication” were used in Dugan v. Rank, 372 U. S. 609, 618, to indicate that 43 U. S. C. § 666 does not cover consent by the United States to be sued in a private suit to determine its rights against a few claimants. The present suit, like the one in the Eagle County case, reaches all claims, perhaps month by month but inclusively in the totality; and, as we said in the other case, if there is a collision between prior adjudicated rights and reserved rights of the United States, the federal question can be preserved in the state decision and brought here for review.
Affirmed.
The Colorado Water Rights Determination and Administration Act of 1969, Colo. Rev. Stat. Ann. § 148-21-1 et seq., Colo. Rev. Stat. Ann. § 148-21-18 (3) (Supp. 1969).
The 1969 Act here in question abolished the 70 water districts previously existing and replaced them with seven water divisions.
Colo. Rev. Stat. Ann. § 148-21-8 (6).
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Fred BROWN, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC., et al., Defendants-Appellees.
No. 89-7151.
United States Court of Appeals, Eleventh Circuit.
April 25, 1990.
Leo E. Costello, Costello & Stott, Birmingham, Ala., for plaintiff-appellant.
Lawrence B. Clark, Lange, Simpson, Robinson & Somerville, Sally S. Reilly, Timothy A. Palmer, Charles C. Pinckney, Birmingham, Ala., for defendants-appellees.
Before JOHNSON, Circuit Judge, RONEY , Senior Circuit Judge, and MELTON , District Judge.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Howell W. Melton, U.S. District Judge for the Middle District of Florida, sitting by designation.
MELTON, District Judge:
Fred Brown (“Brown”) was denied hospitalization benefits under a group health plan because he had not obtained a precer-tification of the hospital admission. The district court held that the decision to deny benefits under this ERISA plan was not arbitrary and capricious and entered summary judgment for defendants. Brown argues on appeal that there were material issues of fact and that the district court failed to apply the governing law. We reverse and remand for further proceedings.
Brown, an employee of Truck Rentals of Alabama, Inc., was a participant in Truck Rentals’ group health care plan established pursuant -to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Blue Cross and Blue Shield of Alabama, Inc. (“Blue Cross”), provides insurance coverage under the plan for a monthly premium.
The plan automatically covers the cost of in-patient hospital care arising from a medical emergency but provides coverage in other cases only when Blue Cross has “approved and precertified the admission and stay” before the participant’s admission to the hospital. Brown was in the hospital twice for the same condition. The first visit was covered as a medical emergency; the second was not.
Brown was admitted to St. Charles General Hospital in New Orleans, Louisiana, because of a sinus condition. The first hospitalization lasted from September 21 through September 26, 1987. The second began on September 29 and ended on October 6, 1987. During the second stay, Brown underwent surgery for his sinus condition. The trial court found that no preadmission certification was obtained for either period of hospitalization. Without a preadmission certification, coverage for hospital expenses depends upon whether a hospitalization was compelled by a “medical emergency.”
When claims were filed for plan benefits, Blue Cross initially denied all coverage. The company later extended coverage to the first hospitalization as a medical emergency, but refused coverage for the second. Brown filed suit to compel payment for the second period of hospitalization. He urged two theories favoring coverage, one in which the second period is treated as a continuation of the first and another in which the second period is treated as an independent emergency situation.
The district court reviewed the denial of benefits under an arbitrary and capricious standard, consistent with the law in this Circuit at the time of the decision. See, e.g., Hoover v. Blue Cross & Blue Shield of Ala., 855 F.2d 1538, 1541 (11th Cir.1988); Griffis v. Delta Family-Care Disability & Survivorship Plan, 723 F.2d 822, 825 (11th Cir.) (adopting district court opinion), cert. denied, 467 U.S. 1242, 104 S.Ct. 3514, 82 L.Ed.2d 823 (1984). Brown asserts that the Supreme Court’s recent decision of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), decided after this case was before the district court, requires a de novo standard of review. That case, to the contrary, demonstrates that an arbitrary and capricious standard continues to be applicable here.
Although Firestone does not alter in form the standard applied to review of the fiduciary’s decision, the substance of review was subtly altered by the opinion. We examine herein the impact of this change. Our application of the Firestone opinion yields the conclusion that the decision of the district court must be reversed and remanded.
SCOPE OF REVIEW
Our review of the district court’s grant of summary judgment begins with a brief statement of its scope. Judge Johnson has identified an ambiguity in our prior statements of the scope of review in ERISA benefit denial review cases. See Jett v. Blue Cross & Blue Shield of Ala., 890 F.2d 1137, 1140-41 (11th Cir.1989) (Johnson, J., concurring and dissenting). The issue arises from the statement in Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), that “[i]n assessing Guy’s contention that the Fund improperly denied him benefits, therefore, we must determine whether the district court’s finding that the Fund’s decision was arbitrary and capricious is clearly erroneous.” Id. at 39. Read literally, this statement apparently conflicts with our precedents that have uniformly treated the conclusion that an action is arbitrary and capricious as a matter of law subject to de novo review. See, e.g., Harris v. Pullman Standard, Inc., 809 F.2d 1495, 1499 (11th Cir.1987); Anderson v. Ciba-Geigy Corp., 759 F.2d 1518, 1522 (11th Cir.), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566, 1569 (11th Cir.1985); Helms v. Monsanto Co., 728 F.2d 1416 (11th Cir.1984). But Guy should not be read so literally. The discussion following the statement of the scope of review considers the district court’s factual findings under the clearly erroneous standard but visits relevant legal principles anew. See Guy, 877 F.2d at 39-40. The actual exercise of de novo review over the legal conclusion belies any misconception otherwise suggested by the opinion.
This appeal from grant of summary judgment is subject to plenary review. See, e.g., Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). We therefore apply the same legal standards that bound the district court. Id. The standard governing the grant of summary judgment is well-known and well expressed elsewhere, see id. at 933-34, so it will not be repeated here.
In our review of the substantive issue whether Blue Cross was arbitrary and capricious in its denial of Brown’s claim for benefits, we “determine whether there was a reasonable basis for the decision [to deny benefits], based on the facts as known to the [fiduciary] at the time the decision was made.” Jett, 890 F.2d at 1139. The concept of “reasonable basis,” however, must be modified consistent with the following discussion of the application of the arbitrary and capricious standard in the present context.
STANDARD OF REVIEW FOR FIDUCIARY DECISIONS
In Firestone, the Court established de novo judicial review of an ERISA benefits denial decision “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” 109 S.Ct. at 956. Appellant does not argue that this principle would not apply to Blue Cross in this case. The Group Hospital and Major Medical Contract between Baggett Transportation Company and Blue Cross, which we take to be the ERISA benefit plan document (hereinafter “Contract Plan”), confers discretion on Blue Cross in the matter of benefits determinations. The provision states:
As a condition precedent to coverage, it is agreed that whenever [Blue Cross] makes reasonable determinations which are not arbitrary and capricious in the administration of the [plan] (including, without limitation, determinations whether services, care, treatment or supplies are Medically Necessary ...), such determinations shall be final and conclusive.
Contract Plan, § IX(K). Notably, the division of ERISA duties between Baggett Transportation Company and Blue Cross provides:
It is expressly understood and agreed by the parties to the Contract that any and all duties assigned by ERISA to the “plan administrator” shall be deemed for purposes of this Contract as duties of the Employer and not those of [Blue Cross].
Id., § XIII(D)(1). Thus, Blue Cross exercises its discretion as a fiduciary, not as plan administrator. For our purposes, however, this distinction is not of consequence because Firestone applies equally to the decisions of fiduciaries and the plan administrator.
Before Firestone, several circuits undertook to vary the deference accorded trustee or fiduciary decisions, within the framework of the arbitrary and capricious standard, in reaction to the presence or absence of conflicting interests on the part of the decisionmaker. See, e.g., Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 895 (10th Cir.1988); Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir.1987); Holland v. Burlington Indus., Inc., 712 F.2d 1140, 1149 (4th Cir.1985), sum. aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986); Gilbert v. Burlington Indus., Inc., 765 F.2d 320, 328-29 (2d Cir.1985), sum. aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); Jung v. FMC Corp., 755 F.2d 708, 711-12 (9th Cir.1985); Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir.1982); Maggard v. O’Connell, 671 F.2d 568, 571 (D.C.Cir.1982); see also Gesina v. General Elec. Co., 162 Ariz. 39, 780 P.2d 1380, 1383-85 (App.) (adopting variable deference in original opinion decided before Firestone and adhering thereto in post-Firestone opinion on reconsideration), rev. denied, 162 Ariz. 39, 780 P.2d 1380 (1989). The Court’s opinion in Firestone serves to underscore the perceptiveness of these cases. In the same paragraph in which the Court gave its approval to plans that confer discretion on benefits decisionmakers, the Court added, “Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor[] in determining whether there is an abuse of discretion.’ ” Firestone, 109 S.Ct. at 956 (quoting Restatement (Second) of Trusts § 187, Comment d (1959)).
Our task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the decisionmaking fiduciary for benefits that are paid out of the insurance company’s assets. Several features distinguish insurance policy plans from other forms of ERISA plans.
The most familiar distinction lies in the application of certain state laws to ERISA plans. Although other forms of ERISA plans may offer the same kinds of health or other benefits that insurance policy plans offer, only insurance policy plans are subject to “any law of any State which regulates insurance.” See 29 U.S.C. § 1144(b)(2)(A) (savings clause); see also id. § 1144(b)(2)(B) (so-called deemer clause, which exempts employee welfare plans from insurance regulation). Congress intended a distinction between insured and uninsured plans such that the former are subject to state regulations, for example, mandated-benefit laws, that have the effect of transferring or spreading a policyholder’s risk, that are an integral part of the policy relationship between the insurer and the insured, and that are limited to entities within the insurance industry. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738-47, 105 S.Ct. 2380, 2388-93, 85 L.Ed.2d 728 (1985) (applying mandated-benefit law to group health insurance ERISA plan); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (refusing to apply general contract law causes of action against group insurance policy).
Another, more important distinction derives from the trust aspect of ERISA plans. The trust nature of employee benefit plans is fundamental to ERISA. The statute provides, with enumerated exceptions, “all assets of an employee benefit plan shall be held in trust by one or more trustees.” 29 U.S.C. § 1103(a). Insurance policy plans fall within the exceptions. The policy is an asset of the plan, but the insurer’s assets are not thereby included in the plan. Id. § 1101(b)(2). Moreover, this asset of the plan, the insurance policy, is not an asset held in trust for the beneficiaries of the plan because the trust requirements of section 1103(a) do not apply “to assets of a plan which consist of insurance contracts or policies issued by an insurance company qualified to do business in a State.” Id. § 1103(b)(1). Inasmuch as “[t]he basis for the deferential standard of review in the first place was the trust nature of most ERISA plans,” Moon v. American Home Assurance Co., 888 F.2d 86, 89 (11th Cir.1989), the most important reason for deferential review is lacking.
A final distinction involves the inherent conflict between the roles assumed by an insurance company that administers claims under a policy it issued. When vested with discretion to interpret the insurance policy qua ERISA benefits plan, the insurance company qua fiduciary is measured by a standard of loyalty, see 29 U.S.C. § 1104(a)(1)(A), and a standard of care, see id. § 1104(a)(1)(B), in the exercise of its duties, see Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 570-72, 105 S.Ct. 2833, 2840-41, 86 L.Ed.2d 447 (1985); Local Union 2134, U.M.W. of Am. v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987). Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business. That is, when an insurance company serves as ERISA fiduciary to a plan composed solely of a policy or contract issued by that company, it is exercising discretion over a situation for which it incurs “direct, immediate expense as a result of benefit determinations favorable to [pjlan participants.” De Nobel v. Vitro Corp., 885 F.2d 1180, 1191 (4th Cir.1989) (explaining threshold for economic conflict of interest by fiduciary); see also Slover v. Boral Henderson Clay Prod. Inc., 714 F.Supp. 825, 833-34 (E.D.Tex.1989); Gesina, 780 P.2d at 1383. We conclude, then, as has one district judge in an opinion since Firestone, that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims_” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989).
The inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate. (The common-law basis for this proposition is developed infra.) Since the Firestone decision we have not considered any comparable situation. Four cases have been decided in this Circuit thus far. We briefly review each.
In Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), we affirmed the district court’s conclusion that the trustees of a self-funded' employee benefit plan acted in an arbitrary and capricious manner by refusing to pay a beneficiary’s medical bills. We did not reach any issue related to conflicting interests because the trustees’ decision did not survive the most deferential standard of review. See id. at 39.
In Moon v. American Home Assurance Co., 888 F.2d 86 (11th Cir.1989), we applied the de novo standard of review to the denial of benefits by an insurance company on a death benefits policy. An individual, not the insurance company, was the administrator of the plan and no discretionary authority was vested in the company (thus precluding it from gaining fiduciary status). Id. at 88. We naturally had no occasion to examine the arbitrary and capricious standard.
Similarly, in Baker v. Big Star Div. of the Grand Union Co., 893 F.2d 288 (11th Cir.1989) (as amended), we remanded a case for application of the de novo standard to the denial of a claim for disability benefits by an insurance company that acted as claims administrator for a self-insured plan. We absolved the insurance company of either ERISA plan administrator or fiduciary status based on its purely ministerial role as an administrative servicing agent for claims processing. Id. at 290. Because the insurance company did not pay the benefits from its coffers and did not exercise discretion under the employee benefit plan, Baker does not shed light on the issues that presently concern us.
Finally, in Jett v. Blue Cross & Blue Shield of Alabama, 890 F.2d 1137 (11th Cir.1989), we applied the arbitrary and capricious standard to the benefits determination made by an insurance company pursuant to a clause conferring discretionary authority in nearly the same terms as the ERISA plan in this case. The crucial difference in Jett, however, is the lack of any conflicting interest on the part of the insurance company. The plan was self-insured, with the insurance company acting as administrator and receiving full reimbursement from the plan sponsor for covered medical claims. Id. at 1138. The insurance company would not suffer any direct, immediate expense as a result of benefit determinations favorable to plan participants. Consequently, the insurance company qua plan administrator deserved and was accorded the highest deference in review of its claims denial decision. Cf. Bali v. Blue Cross & Blue Shield Ass’n, 873 F.2d 1043, 1047 n. 5 (7th Cir.1989) (no conflict of interest implicated where third party made determinations on benefits).
In summary, we face for the first time (since Firestone) how to reconcile the inherent conflict posed by benefits determinations made by an insurance company administering its own policy. While de novo review is an attractive avenue for controlling the exercise of discretion contrary to the interests of the beneficiaries, the application of this strict standard would deny Blue Cross the benefit of the bargain it made in the insurance contract. See Firestone, 109 S.Ct. at 954. The Firestone Court firmly endorsed the ability of parties to “agree[] upon a narrower standard of review.” Id. at 956. At the same time, we must control the tension between contractual standards of review and an interpretation of ERISA that “would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted.” Id. We therefore hold that the abuse of discretion, or arbitrary and capricious, standard applies to cases such as this one, but the application of the standard is shaped by the circumstances of the inherent conflict of interest.
In saying that Blue Cross’ benefits determinations are subject to review by the arbitrary and capricious standard, we recognize that the concept of arbitrary and capricious “must be contextually tailored.” Maggard, 671 F.2d at 571. The degree of deference exercised in review of a fiduciary’s decision ranges from slight to great, depending upon the dynamics of the decisionmaking process. See Van Boxel, 836 F.2d at 1052-53. In Posnerian terms, “the arbitrary and capricious standard may be a range, not a point.” Id. at 1052; accord Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 525 n. 6 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989).
The disinterested, impartial decisionmaker deserves the greatest deference. “Where ... the claimant does not argue or is unable to show that the trustees had a significant conflict of interest, we reverse the denial of benefits only if the denial is completely unreasonable.” Van Boxel, 836 F.2d at 1053. Compare De Nobel, 885 F.2d at 1191-92 (no evidence to suggest decision was tainted by conflict of interest and explanation of denial was reasonable) with Guy, 877 F.2d at 39-40 (conflict of interest issue not raised, but trustees acted unreasonably by denying benefits, without affording claimant notice or right of appeal, on basis of uncertain equitable right of recovery through subrogation). Correspondingly, “[w]hen the members of a tribunal — for example, the trustees of a pension fund — have a serious conflict of interest, the proper deference to give may be slight, even zero; the decision if wrong may be unreasonable.” Van Boxel, 836 F.2d at 1052.
By describing this range we have drawn merely the outer boundaries of our inquiry. We now must fix more precisely the method for evaluating the abuse of discretion. The Firestone Court has directed us to consult common law principles of trusts and has facilitated the task further by mentioning a particularly illuminating source by name.
Comment d to section 187 of the Restatement (Second) of Trusts lists six factors to consult to determine the question whether a trustee is guilty of abuse of discretion in exercising or failing to exercise a power. These factors are:
(1) the extent of the discretion conferred upon the trustee by the terms of the trust; (2) the purposes of the trust; (3) the nature of the power; (4) the existence or non-existence, the definiteness or indefiniteness, of an external standard by which the reasonableness of the trustee’s conduct can be judged; (5) the motives of the trustee in exercising the power; (6) the existence or nonexistence of an interest in the trustee conflicting with that of the beneficiaries.
Restatement (Second) of Trusts § 187, Comment d. The first factor is essentially considered in deciding that the arbitrary and capricious standard applies. The second and third factors have a constant quality dictated by ERISA. Adaptation of the remaining principles to the ERISA context is our next step.
The sixth factor is the most significant in this case. (We have set forth supra the analysis of the conflict of interest present in this case.) A finding of a conflicting interest has a tremendous impact on the evaluation of the fiduciary’s actions.
[T]he beneficiary need only show that the fiduciary allowed himself to be placed in a position where his personal interest might conflict with the interest of the beneficiary. It is unnecessary to show that the fiduciary succumbed to this temptation, that he acted in bad faith, that he gained an advantage, fair or unfair, that the beneficiary was harmed. Indeed, the law presumes that the fiduciary acted disloyally, and inquiry into such matters is foreclosed. The rule is not intended to compensate the beneficiary for any loss he may have sustained or to deprive the fiduciary of any unjust enrichment. Its sole purpose and effect is prophylactic....
Fulton Nat’l Bank v. Tate, 363 F.2d 562, 571-72 (5th Cir.1966) (emphasis in original). In other words, one reason for limiting the deference when the fiduciary suffers a conflict of interest is to discourage arrangements where a conflict arises. Cf. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 142-43, 105 S.Ct. 3085, 3091, 87 L.Ed.2d 96 (1985) (“the avoidance of conflicts of interest” is among the primary statutory duties imposed by ERISA on fiduciaries); Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir.) (fiduciaries must “avoid placing themselves in a position where their acts [in their other roles] will prevent their functioning with the complete loyalty to participants demanded of them as [fiduciaries]”), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982).
The matter of conflicting interests touches on the fifth factor, improper motive, as well.
Although ordinarily the court will not inquire into the motives of the trustee, yet if it is shown that his motives were improper or that he could not have acted from a proper motive, the court will interpose. In the determination of the question whether the trustee in the exercise of a power is acting from an improper motive the fact that the trustee has an interest conflicting with that of the beneficiary is to be considered.
Restatement (Second) of Trusts § 187, Comment g; accord 3 A. Scott & W. Fratcher, The Law of Trusts § 187.5, at 47 (4th ed. 1988) [hereinafter “Scott on Trusts ”]. The rationale for this approach is clear. A conflicted fiduciary may favor, consciously or unconsciously, its interests over the interests of the plan beneficiaries. See Tate, 363 F.2d at 571. The judicial hesitation to inquire into the fiduciary’s motives will leave the beneficiaries unprotected unless the existence of a substantial conflicting interest shifts the burden to the fiduciary to demonstrate that its decision is not infected with self-interest. See id. at 569-79; see also Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939) (director of corporation stands in fiduciary relationship so that self-dealings with corporation must meet standards of good faith and inherent fairness from viewpoint of corporation); Phelan v. Middle States Oil Corp., 220 F.2d 593, 600 (2d Cir.1955) (burden on beneficiary to prove conflict of interest, then burden shifts to trustee to show no loss to beneficiaries resulting from conflict), cert. denied, 349 U.S. 929, 75 S.Ct. 772, 99 L.Ed. 1260 (1955); Gilliam v. Edwards, 492 F.Supp. 1255, 1263-64 (D.N.J.1980) (applying Tate to ERISA context); Blankenship v. Boyle, 329 F.Supp. 1089, 1096 (D.D.C.1971) (pre-ERISA case in which Pepper was applied to fiduciaries of pension fund to require explanation why cash surpluses were accumulated contrary to duty to maximize trust income by prudent investment); see generally 6. Bogert & G. Bogert, The Law of Trusts & Trustees § 543, at 40-42 (rev. 2d ed. Supp.1989).
Improper motive encompasses something different from dishonesty or bad faith. See 3 Scott on Trusts § 187.5, at 46-47. Even the broadest delegation of discretion to a trustee or fiduciary is bounded by the limitation that the fiduciary cannot act from a motive other than the accomplishment of the purposes of the trust. See, e.g., Funk v. Commissioner, 185 F.2d 127, 130 (3d Cir.1950); McDonald v. McDonald, 92 Ala. 537, 9 So. 195, 196-97 (1890); In re Estate of Smith, 117 Cal.App.3d 511, 172 Cal.Rptr. 788, 794 (1981); Mesler v. Holly, 318 So.2d 530, 533 (Fla.Dist.Ct.App.1975); Lyter v. Vestal, 355 Mo. 457, 196 S.W.2d 769, 773 (1946); In re Alpert, 129 A.D.2d 444, 514 N.Y.S.2d 16, 17, appeal denied, 70 N.Y.2d 603, 518 N.Y.S.2d 1026, 512 N.E.2d 552 (1987); In re Bruches, 67 A.D.2d 456, 415 N.Y.S.2d 664, 668 (1979). For example, where a trustee appears to be motivated by a desire to terminate the trust, the motive is improper and the trustee’s discretionary determinations are scrutinized closely. See Colket v. St. Louis Union Trust Co., 52 F.2d 390, 395-96 (8th Cir.1931), cert. denied, 285 U.S. 543, 52 S.Ct. 393, 76 L.Ed. 935 (1932). ERISA’s standard of loyalty constitutes statutory recognition of the bar on improper motivation. See Central States, 472 U.S. at 571 n. 12, 105 S.Ct. at 2840 n. 12. We have found improper motive in ERISA cases where fiduciaries or trustees failed to act in the sole interests of the beneficiaries by acting to advance the interests of the sponsoring union, Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 579-81 (11th Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988), or by acting to advance their personal interests, Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1261 (5th Cir.1980).
In accordance with the foregoing common law principles, we hold that when a plan beneficiary demonstrates a substantial conflict of interest on the part of the fiduciary responsible for benefits determinations, the burden shifts to the fiduciary to prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest. That is, a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries. This rule, we note, is an extension of the settled federal common law rule developed under the Labor Management Relations Act and subsequently applied in another context under ERISA. See, e.g., Marshall v. Snyder, 572 F.2d 894, 900-01 (2d Cir.1978); Nedd v. United Mine Workers, 556 F.2d 190, 210-11 (3d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 757 (1978); Kaszuk v. Bakery & Confectionery Union, 638 F.Supp. 365, 373 (N.D.Ill.1985); Freund v. Marshall & Ilsley Bank, 485 F.Supp. 629, 636 (W.D.Wis.1979).
We have engaged in burden shifting of this type for similar reasons in ERISA suits. In Fine v. Semet, 699 F.2d 1091 (11th Cir.1983), the plan committed benefits determinations to the sole discretion of the trustees. We found that “after [the beneficiary] met his initial burden of offering evidence of facially inconsistent treatment, the burden shifted to the trustees to show why they acted as they did.” Id. at 1095. We focused on the articulated reasons given by the trustees and, given
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_typeiss
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
The ATLANTIC REFINING COMPANY, Owner of the Tankship Atlantic Trader, Appellee, v. MATSON NAVIGATION COMPANY, Owner of the Steamship Hawaiian Retailer, Appellant.
No. 12340.
United States Court of Appeals Third Circuit.
Argued Feb. 3, 1958.
Decided April 3, 1958.
MacDorvild Deming, New York City (Springer H. Moore, Jr., Krusen, Evans & Shaw, Philadelphia, Pa., Richard G. Ashworth, Haight, Gardner, Poor & Havens, New York City, on the brief), for appellant.
Thomas F. Mount, Philadelphia,, Pa. (Rawle & Henderson, Harrison G. Kil-dare, Philadelphia, Pa., on the brief)'., for appellee.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this admiralty case the facts are stipulated. They show that the tanker Atlantic Trader, on December 16, 1950, proceeding in the Delaware River fouled her propeller and tailshaft on a buoy chain. A survey determined she had not been rendered unseaworthy and the repairs were deferred until her next dry-docking. On January 29, 1951, she suffered bottom damage arising out of a grounding as the result of appellant’s s/s Hawaiian Retailer overtaking her. After discharging her cargo the Atlantic Trader proceeded to the drydock where she arrived February 6, 1951, for the repairing of the bottom damage, the damages caused by the buoy, and for maintenance repairs, general overhaul and annual hull, boiler and machinery classification surveys which had been scheduled for March 14, 1951. All the work was performed concurrently without mutual interference and completed at the same time.
There was a consent decree awarding the appellee 75% of its provable damages. The parties had agreed on the cost of the grounding damage repairs and that appellant should pay 75% thereof. The admitted drydocking expense amounted to $18,459.07 which the Commissioner concluded should be borne by libelant. The district judge, sustaining the exception to that part of the Commissioner’s report, held that the drydocking cost should be included in the Atlantic Trader’s grounding damages.
The one appeal issue is whether, under the circumstances, appellee is entitled to its drydock expense from appellant. The latter argues that, though the repair of the tort damage was immediately necessary, Atlantic Refining cannot charge it for time and costs which had to be incurred in any event and therefore were not proximately caused by the grounding.
Appellant complains that although the Atlantic Trader was forced into dry-dock by the grounding damage, once there it had other repairs and routine overhauling attended to at the same time. It admits these caused no interference to the tort job and that there was no extra cost to it. Nevertheless, it, in effect, contends appellee should have held off the other work until after the tanker’s hull had been fixed. That this would have meant completely unnecessary extra expense and further loss of time to the Atlantic Trader is not commented upon by appellant who flatly claims appellee is receiving an unjustified windfall. We cannot accept this. Appellee’s ship had been rendered un-seaworthy through the major fault of appellant. The bottom condition could not be remedied without drydocking. The tanker discharged her cargo at Philadelphia at once, completing the task the next day, January 30, 1951 and then sailing for the drydock. While the ship was laid up for the tort repairs appel-lee had her seasonal checkup and other damage taken care of. There was no rush about these latter. As events turned out she went off drydock February 14, 1951 and left the shipyard the following day. This was a month prior to the date on which she had been expected to go in for her survey and'forty-three days after the accident. We see no reason for penalizing appellee because of the common sense practice it followed.
The proximate cause of the forced docking was the tort. The tanker was seaworthy otherwise. It had a March overhauling scheduled which was not mandatory and probably could have been postponed. Appellant urges that The Pocahontas, 2 Cir., 1940, 109 F.2d 929, supports its position. We disagree. The governing law set out in that case relevant to the situation at bar is restitutio in integrum which, under the present facts, includes the cost of necessary repairs. The court said on the particular point at page 931:
“If the collision damage is serious enough to necessitate an immediate lay-up for repairs, the owner may charge the tort-feasor with what the vessel would actually have earned during the detention period; and there will be no abatement of the amount because the owner chooses the occasion to accelerate his annual overhaul or to repair damage for owner’s account of a character not necessitating an immediate layup and not extending the detention period beyond the time required for collision repairs.”
Certainly if there is no abatement of earnings under the above Pocahontas doctrine which states an issue identical with the one before us, there should be no abatement of the expense of restoring the ship to seaworthy condition. From the stipulated facts, appellee’s action in seeing to it that the survey and the other repairs were disposed of during the Atlantic Trader’s lay up was in strict accord with Pocahontas. It in nowise conflicted with the proposition that even a tortfeasor is entitled to the benefit of the principle of avoidable damages. In the earlier Second Circuit decision of Clyde S. S. Co. v. City of New York, 1927, 20 F.2d 381, the damaged vessel was operated for seven months before being drydocked. Nor does Moore-McCormack, Lines Inc., v. The Esso Camden, 2 Cir., 1957, 244 F.2d 198, lend any real substance to appellant’s contention. The phase of it in which we are interested was a minor element of that suit and dealt with briefly. However, it is very clear from the Esso Camden opinion that the damaged vessel was in drydock seventeen days and that there was a commitment regarding it of two days drydock for general repairs. In other words there was a distinct separation of the total drydock time with the tort repairs covering fifteen days out of the total. We are confronted with no such cleavage problem. Concededly appellant has been charged for the use of the dock only while Atlantic Trader’s damage for which it was responsible was being worked on. The circumstance that simultaneously appellee was able to attend to the ship’s checkup and other repairs was merely a fortuitous event legitimately taken advantage of by appellee. Our own examination has not revealed, nor have we been referred to, any decision denying drydock cost under facts as here shown.
The decree of the district court will be affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_casetyp1_9-3
|
O
|
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 "miscellaneous".
UNITED STATES of America, ex rel. Matthew BRZOVICH, Petitioner-Appellant, and Matthew Brzovich, Plaintiff-Appellant, v. Ralph D. HOLTON, District Director of Immigration, United States Department of Justice, Respondent-Appellee.
No. 11267.
United States Court of Appeals Seventh Circuit.
June 1, 1955.
Irving G. Steinberg, Edmund Hatfield, Chicago, 111., for appellant.
Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, 111., for appellee.
Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges.
MAJOR, Circuit Judge.
Petitioner, Matthew Brzovich, filed his petition for a writ of habeas corpus to set aside an order of deportation; in the alternative, he petitioned for judicial review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. The District Court discharged the writ of habeas corpus and in the same order denied review under the Administrative Procedure Act. From this order petitioner appeals.
We need not be concerned with the twofold form of relief sought because it has recently been held by the Supreme Court that the validity of a deportation order may be tested either by habeas corpus or by review under the Administrative Procedure Act. Shaughnessy v. Pedreiro, 1955, 75 S.Ct. 591. And we think that our scope of review is the same, irrespective , of which procedure is employed.
The order under attack, issued by the Attorney General, charged that petitioner was present in the United States in violation of the Act of October 16, 1918, as amended, in that he was, after entry, a member of the following class set forth in Section 1 of that Act: an alien who is a member of the Communist Party of the United States. A hearing on the order to show cause why petitioner should not be deported was held before a Special Inquiry Officer in the offices of the Immigration Service in Chicago, which culminated in a final hearing on February 5, 1953. That officer, after reviewing and analyzing the evidence, stated: “The Special Inquiry Officer has carefully examined the entire record in this matter and believes that the evidence is not of a sufficiently reasonable, substantial and probative nature to justify the conclusion that this respondent was a member of the Communist Party of the United States after entry. * * * Accordingly, an order terminating the proceedings will be entered.” The officer found as a fact: “That it has not been established that the respondent was a member of the Communist Party of the United States after entry,” and concluded : “That under the Act of October 16, 1918, as amended, the respondent is not subject to deportation on the ground that he is found to have been, after entry, a member of the following class, set forth in Section 1 of said Act: an alien who is a member of the Communist Party of the United States.”
The Board of Immigration Appeals directed that the case be certified to it for the entry of a final order. The Board also reviewed the record in detail and in its decision, relative to petitioner, stated: “That he was a Communist Party member is established. The decision of the special inquiry officer must.be reversed. Deportation will be ordered.” Thereupon, a deportation order was entered on the charge stated in the warrant, of arrest.
While numerous issues have been argued, we are of the view that the principal and controlling issue is whether the deportation order was based upon “reasonable, substantial, and probative evidence.” This issue involves the question as to whether the action of the Board in its refusal to accept the finding of the Special Inquiry Officer was capricious, arbitrary and without authority of law. On this question we are without the aid of authority other than the statutory provisions and the regulations promulgated pursuant thereto. The dearth of authority is no doubt due to the fact that the present proceeding is under the Immigration and Nationality Act of 1952, in which marked changes were made in thé procedure to be employed in a deportation proceeding.
Section 242(b) of the Act, Title 8 U.S. C.A. § 1252(b) provides: “A special inquiry officer shall conduct proceedings under this section to determine the de-portability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation.” This section further delineates the procedure to be employed and provides: “Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe. Such regulations shall include requirements that—* * * (4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.” The section further provides: “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section. In any case in which an alien is ordered deported from the United States under the provisions of this chapter, * * * the decision of the Attorney General shall be final.” (In the recent case of Shaughnessy v. Pedreiro, supra, it was held that “final” referred to the administrative procedure and not to a judicial review.)
The rules and regulations promulgated by the Immigration and Naturalization Service pursuant to the statutory authority (17 F.R. 11469, 11514, 11515) provide among other things: “The special hearing officer shall conduct a fair and impartial hearing. No decision of deportability shall be valid unless based upon reasonable, substantial and probative evidence,” and further: “ * * * the special hearing officer shall, as soon as practicable after the conclusion of the hearing, prepare a written decision signed by him which shall set forth a summary of the evidence adduced and his findings of fact and conclusions of law as to deportability * * *.”
The rules and regulations relative to the order to be made by the Special Inquiry Officer provide that such order “shall be (1) that the alien be deported, or (2) that the proceedings be terminated, * * * or (5) that such other action be taken in the proceedings as may be required for the appropriate disposition of the case.”
We are aware of nothing in the statute or rules and regulations which confers upon the Board any authority other than to hear oral argument on appeal. It appears evident that it is given no authority to make findings of fact or to try an issue de novo. It is endowed only with the typical reviewing function. This view finds support in the comments on the Act by the legislative assistant to the House Judiciary Committee, wherein it is stated: “The Board has appellate jurisdiction from: (1) Decisions of special inquiry officers in exclusion and deportation cases * * Title 8 U.S. C.A. page 50.
Thus the responsibility of conducting a fair and impartial hearing, with making findings of fact and conclusions of law, is placed squarely upon the Special Inquiry Officer and such findings must rest upon evidence which is “reasonable, substantial, and probative.”
It appears that the Board is bound by the findings of the Special Inquiry Officer, if substantially supported, in the same manner and to the same extent as is a court of review. It is interesting and of some relevancy to note the contrast between the statutory scheme provided in thi» Act and that contained in the National Labor Relations Act, Title 29 U.S.C.A. § 151 et seq. In the latter Act the hearing officer makes a record with his recommendation, without findings of fact or conclusions of law. The Board is charged with the responsibility of making findings and is also empowered to hear additional testimony. Even so, courts have had difficulty in reconciling their findings of fact when contrary to the recommendation of the hearing officer, because it is the latter who sees and hears the witnesses and is thus in the better position to weigh and evaluate the testimony.
In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 492, 71 S.Ct. 456, 95 L.Ed. 456, the court discusses the problem, with numerous pertinent observations, the net result of which is that in a case where the Board makes findings contrary to the recommendations of its hearing officer, a court on review, in determining the substan-tiality of the evidence, must consider and evaluate the recommendations of the hearing officer as a part of the record. Such being the case under a statute which places the responsibility of making findings not upon the hearing officer but upon the Board, the importance of the report of the hearing officer who is charged with the responsibility of making such findings, as under the instant Act, would appear to occupy a well near invincible position.
Assuming arguendo that we are in error in our appraisement of the limited scope of review possessed by the Board, we still think that under the circumstances its action in rejecting the findings of the Special Inquiry Officer was not justified and must be characterized as capricious, arbitrary and not in accordance with law. In support of such view, we think it unnecessary to enter into a detailed discussion of the evidence. It is sufficient to note that we have read and studied the analysis of the evidence made both by the Special Inquiry Officer and by the Board and are definitely of the view that there is no sound or logical basis for casting aside the findings of the officer who heard and saw the witnesses and who was in a better position to evaluate and weigh the testimony than the Board or this court.
Briefly, petitioner, a resident of Chicago for the past twenty-five years, came to the United States in 1915. He is married and has a son, a native born citizen of the United States. From the time he was taken into custody by the Immigration Service to the present, he has been enlarged on bail and, therefore, has not been considered a security risk. The sole witness who testified against petitioner was one Cvetic, who joined the Communist Party in 1943 as a salaried agent of the F. B. I., and who acted as a professional witness in numerous Communist trials and deportation proceedings. He testified that he met petitioner at a meeting of the Communist Party held in Cleveland, Ohio, in the - latter part of 1948. His testimony on this point, however, was in some respects evasive- and conflicting. The witness also testified that petitioner had sold subscriptions for a Croation language newspaper, Narodni Glasnik, published- in Pittsburgh, and that petitioner had written articles for it as a correspondent in Chicago. This testimony indicated that this newspaper was controlled by the Communist Party. We have read these articles introduced in evidence and we find not a single word which would indicate that petitioner was a Communist. It is claimed that petitioner was a paid employee of the newspaper and that no persons were so employed other than Communists., The evidence on this score raises no more than an anemic suspicion. The Board in its analysis of the evidence relies upon the testimony of Cvetic “that the respondent [petitioner] was commonly referred to as a member of the Communist Party by other Communists who considered him a responsible and active member in the Chicago area,” and that “his experience [that of the. witness] revealed that only persons who are Party members are hired to work on the staff of the paper and that assignments to jobs on the newspaper are made by the Communist Party.” This testimony was hearsay and has no more probative value than the tattlings from a town meeting. Surely this evidence does not meet the strict standard which Congress has erected, that is, that the evidence must be “reasonable, substantial, and probative.”
We are left in doubt from respondent’s brief as to whether he takes serious issue with our view as to the limited function of the Board. Rather, the Board’s action is sought to be justified on a theory that its decision was only one of law, that is, that the hearing officer erred as a matter of law in deciding that the evidence of petitioner’s membership in the Communist Party was not “reasonable, substantial, and probative.” It is pointed out that the hearing officer made no finding as to the credibility of the witness Cvetic. This is merely a play upon words. True, he did not employ that particular characterization but it is inherent - in the findings which he did make that he regarded the testimony of the witness as unbelievable and incredible. Assuming that issues of law are involved, it must be conceded that such issues rested upon a factual premise which involved the weight to be attached to testimony of Cvetic, a determination of which was the function of the hearing officer.
Moreover, if we accept respondent’s theory that the Board in reversing the hearing officer decided only an issue of law, we are still confronted with making a decision on the same issue, and we think it is not open to question but that our scope of review is at least as broad as that of the Board. Certainly we are charged with the responsibility of deciding questions of law. We agree with the Special Inquiry Officer that the proof was insufficient to justify a finding that petitioner was a member of the Communist Party. We agree, whether the issue be treated as factual or legal. It follows that any legal issue decided by the Board to the contrary was, in our judgment, erroneous.
The order appealed from is reversed, the deportation order entered against petitioner is vacated, with directions that the proceedings against him be terminated, as directed by the Special Inquiry Officer.
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer:
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songer_circuit
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E
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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.
JEFFERS v. BANKERS’ LIFE CO.
No. 6996.
Circuit Court of Appeals, Fifth Circuit
June 14, 1934.
Rehearing Denied July 14, 1934.
James B. Lewright, of San Antonio, Tex., for appellant.
Sam C. .Eldridge, of San Antonio, Tex., Ireland Graves, of Austin, Tex., and R. B. Alberson, of Des Moines, Iowa, for appellee.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
Rehearing denied July 34, 1934.
HUTCHESON, Circuit Judge.
The suit is on a five-year term policy. The defense, lapse for failure to pay the second premium, prevailed below. Plaintiff here, complaining of the instructed verdict she suffered, insists that, notwithstanding his failure to pay the second premium as agreed, the policy was in force on October 13,1925; when her husband died. Her claim is that on September 12, .1925, the date to which, by extension agreements, the right to pay the second premium had been carried, a dividend or dividends had accrued to the policy sufficient to purchase extended insurance beyond the death of the insured, and the company was in duty bound to so apply these sums. She claims, further, that, the policy not having been delivered until one month after its due date, the first premium the insured paid actually carried the policy until February, instead of January, of the following year, and that the eight extension payments he made, applied from February ,12th instead of January 12th, would have carried the policy beyond the date, October 7th, when the full premium was tendered. She claims, too, that the dealings in the form of extension agreements and the reinstatement of the policy, which the company had carried on with the insured, had reasonably led him to believe that the provisions of the extension agreements would be waived, and that he would have a reasonable time after September 12th to pay the full premium.
Defendant points to the fact that the policy does not provide at all for extension insurance; that it specifically conditions the accrual and credit of dividends upon payment of the second premium; that the options for use of dividends were limited by the policy to three, payment of the premium, withdrawal in cash, to be left to accumulate to the credit of the policy. It points to the fact that the extension agreements are special contracts granted upon payment of less than half of the premium rate and upon the express condition that the policy will lapse unless the full premium is paid at the end of the extension period, and that the dating back of the policy was at the request and for the benefit of the insured. It urges that the positions plaintiff takes are all hypothetical, and without support in the facts. A reading of the record makes it clear that the case is not one for a jury verdict; that the question here is not whether a verdict should have been instructed, but whether it should not rather have been instimeted for plaintiff than for defendant.
On the fa ee of the papers there is no doubt that defendant should have had the verdict, but plaintiff insists that it is not the way the contracts the parties made do in fact, but the way they should in law, read, which controls here. She argues that the statutes of Texas are all read into the policy contract. She insists that these statutes not only write into it the provision for extended insurance and the provision for the accrual and application of dividends contrary to the policy terms for which she contends, but they also compel the defendant to teat the extension payments, though less than half of the amounts required, as in effect installment premium payments sufficient to carry the policy to the last extension date, and to require it to use the dividends she claims had accrued to purchase extended insurance from that time. This claim is made in the face of the fact that to allow it would be to make the extension agreements, special contráete outside of the policy agreement, operate directly contrary to their express provisions and as installment premium payments. This claim is made in the face of the fact that each of these extension agreements on its face provides that at the end of the extended time, unless the premium is paid, all rights under the policy shall be the same as if each of the extensions had not been made. We think a simple statement of the facts refutes appellant’s claims.
To obtain an annual saving in premium payments of $164,23, the policy sued on, though not delivered and paid for until January 12, 1924, was by agreement dated back to December 12, 1923. The policy was for $138,000, the premium $2,600 per year, a little less than $2 per month per thousand. On the date the second premium was due with grace, January 12, 1924, the insured did not pay it, but instead applied for and by a deposit of $105, substantially tes than half the monthly rate premium, obtained one month’s extension of time to pay the premium. On February 12th by a similar payment, another extension was applied for and obtained, and this practice was continued each month until June 12, 1925, when, the premium not having been paid, and no other extension granted, the policy lapsed. On July 14th, the insured, certifying to his continued insurability, and paying for two months’ extension, secured reinstatement and an extension of time for premium payment from June 12th to August 12th. On that date he obtained his last monthly extension, carrying the premium payment privilege to September 12th. The premium not having then been paid and no new extension granted, the policy lapsed. Attempts made thereafter to reinstate the policy, including the tender on October 7th of the full premium, failed on account of the serious condition of insured’s health from which on October 13th he died.
Appellee insists that the statutes appellant invokes regulate contracts of mutual life' insurance companies organized in Texas and not foreign companies merely doing business there, and that, if they do, nothing in them supports the claims she makes. It argues too’, that, if subdivision 9, art. 4732, providing “If, in event of default in premium payments, the value of the policy shall be applied to the purchase of other insurances,” does have the effect appellant contends for as to ordinary life policies, it does not apply to term insurance. Gilley v. Insurance Co., 116 Tex. 43, 273 S. W. 825, 285 S. W. 807. It argues, too, that appellant may not, having dated the policy back, claim a different date for the premium payment than that fixed in it. Mutual Life Ins. Co. v. Hurni Pkg. Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102; McCampbell v. New York Life Ins. Co. (C. C. A.) 288 F. 465; Harvey v. Union Central life Ins. Co. (C. C. A.) 45 F.(2d) 78. Finally, it urges as a fundamental defect in appellant’s claims, that, having obtained the benefit of the premium extension agreements, contracts entirely outside of and over and above the agreements in the policy contract, it must take those agreements as burdened; that plaintiff cannot at the same time claim under and repudiate them. Southland life Ins. Co. v. Hopkins (Tex. Com. App.) 244 S. W. 989; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 20 S. Ct. 006, 44 L. Ed. 1088; Bankers’ Life Co. v. Burns (C. C. A.) 30 F.(2d) 327.
We agree with appellee. The insured obtained a policy of term insurance containing definite agreements of simple and valid import. If he had paid his second year’s premium when it was due on or before January 12th, his policy would have been in good standing. He did not pay this premium, and thereafter he was, unless he complied with the extension agreements giving him the limited right to pay the premium within the extended times, without a policy. Jf within the times thus limited he had paid his premium, his policy would have been in force, but only if he had paid it. Separate and independent contracts, these extension agreements bind the insurer; they bind the insured also. They got for the insurer the right to keep the payments to the extent of 75 cents per thousand of insurance, less than half the premium rate figured by the month, in the event of default at the end of the extended period. They got for the insured the right to pay the full premium within the times limited, and continue his policy. The payments made to secure them were not payments of premiums. There was no provision in the policy for paying the premium monthly. The agreements did not, except upon the condition that the premium be paid in full within the time limit, extend the time for paying it. They were not absolute extensions of the policy terms and provisions, as appellant seeks to make them. Appellant tries to give these agreements an exactly opposite effect from that intended, an effect to carry the policy premium date forward to the extension date. This will not do. They were but conditional privileges upon the limited terms contained in them, to postpay the premium as of the policy due date. If, then, under the policy, dividends had accrued, as appellant contends, and if under the policy it had been the duty of the company to purchase extended insurance with these dividends upon the failure to pay the premium upon its policy due date, appellant would not be helped, for, conceding as due, all that appellant claims as dividends, they would not have been. nearly sufficient to purchase extended insurance carrying the policy from the premium due date it fixed beyond the death of the insured.
Wo think it clear, however, that there were no dividends due, that there was no provision for extended insurance, and that there was no duty on the insurer to purchase extended insurance as of any date. We think it clear, too, that there can be no basis for the claim that, by the course of dealing the company had with the insured, any expectation was raised except in accordance with the written agreements, on the basis of which every extension was concluded. Unfortunate and distressing as is the fact that the policy was allowed to lapse so short a time before the death of the insured, in law and in fact it did lapse, and the verdict was rightly instructed for the defendant.
The judgment 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:
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songer_counsel1
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Robert Bernard SMITH, Appellee and Cross-Appellant, v. UNITED STATES of America, Appellant and Cross-Appellee, v. WHITEHALL TERMINAL CORPORATION, Appellee.
No. 9405.
United States Court of Appeals Fourth Circuit.
Argued June 18, 1964.
Decided Aug. 24, 1964.
Sidney H. Kelsey, Norfolk, Va., for appellee and cross-appellant.
John W. Douglas, Asst. Atty. Gen. of United States (Claude V. Spratley, Jr., U. S. Atty., and Sherman L. Cohn and Edward Berlin, Attorneys, Department of Justice, on brief), for appellant and cross-appellee.
William B. Eley, Norfolk, Va. (Rixey & Rixey, Norfolk, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and HEMPHILL, District Judge.
SOBELOFF, Chief Judge:
Libelant, Robert Bernard Smith, a longshoreman employed by the Whitehall Terminal Corporation, filed an action under the Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., to recover damages for personal injuries sustained while working aboard the USNS GOLDEN EAGLE, a vessel oyvned by the United States. A third-party complaint was thereafter brought by the United States against Whitehall for indemnity on the alternate grounds of breach of the express terms of the stevedoring contract or of the implied warranty of workmanlike service.
After a trial before the court without a jury, the United States District Court for the Eastern District of Virginia found that Smith’s injuries were caused in equal degree by the unseaworthiness of the ship and by libelant’s own contributoz’y negligence. Damages were assessed at $12,326.48 but, by application of the comparative negligence principle, the award was reduced by 50 ■ percent. Additionally, the court denied the claim of the United States for indemnity from Whitehall.
Denial of indemnity prompted this appeal by the United States, and a cross-appeal was subsequently filed by Smith to challenge the finding of contributory negligence with the consequent reduction of his award. We shall consider Smith’s cross-appeal first, and then turn to the indemnity question.
I.
Smith reported for work aboard -the GOLDEN EAGLE at eight o’clock on the morning of December 15, 1960. Once on the ship, he climbed down the forward ladder into the number 4 hold. After working there the entire day, he started to ascend from the hold, using the same ladder. The ladder in question was attached to a metal stanchion connecting the hatch coaming (at deck-level) with the floor of the lower ’tween deck, and consisted of parallel vertical rods and horizontal metal rungs. For the most part the rungs protruded from the stanchion, furnishing adequate standing room. However, at one point near the top of the ladder, there were two “recessed indentures,” each of which housed a horizontal metal rung in a compartment only two inches deep. Smith had reached this position on the ladder when he fell. The District Court’s description of the fall is as follows:
“At some stage of his climb a pallet or skid was sent below for the purpose of putting brooms and other items thereon preparatory to closing the hatch. When libelant saw the pallet being lowered into the square of the hatch, he stopped on the ladder and waited for it to pass him safely. He then continued his climb and, according to his contention, his right foot was in the lower recessed indenture (fourth rung from the top), his left foot was in the upper recessed indenture (third rung from the top), his right hand was on the uppermost rung attached to ., the hatch coaming, and his left hand was on the very top of the coaming. At this point his left hand gave way, his left foot slipped from the upper recessed indenture, and he fell to the floor of the lower ’tween deck alongside the pallet which had been sent down to the longshoremen.”
Because it was uncontested that the minimum safe “toe clearance” in an indenture of the type here in question is four inches, with five inches preferred by the United States Navy, and the portion of the ladder where Smith was standing immediately prior to the accident afforded only a two-inch clearance, ' the District Court concluded that the vessel was unseaworthy — a conclusion not now contested. The court further concluded that Smith contributed to the accident by his own fault.
“Viewing libelant’s testimony in its entirety, the preponderance of all of the evidence suggests that (1) his foot did reach one of the recessed indentures, (2) his hand slipped first and then his foot, by reason of the inadequate toe hold afforded, also slipped, (3) he was holding a rung with his right hand at the time, and (4) while his failure to exercise ordinary care for his own safety initially contributed to his precarious position on the ladder, the inadequacy of the recess [sic] indenture was likewise a contributory factor to his fall.
******
“Considering the type of libelant here presented, together with his various inconsistent statements, we do not feel that the evidence as a whole points to the slipping of the hand as the sole cause of the fall. [Italics in original] That this factor combined with the inadequacy of the recessed indenture in bringing about the fall cannot be doubted; , but libelant’s failure to exercise due care for his own safety in properly gi-abbing the rung or top of the coaming is a matter which mitigates the damages. Of course, libelant did not assume the risk of the unseaworthiness of the vessel as to the inadequate ‘toe clearance.’
ir * * * * *
“As the libelant knew of the condition of the recessed indenture and did not take sufficient hold of the rung or top of the coaming with his left hand, and in all probability started to climb the ladder after the pallet was in the process of being lowered into the hold, we believe that his own negligence contributed to the accident by fifty percent.”
In testing the propriety of the District Court’s resolution of the contributory negligence question we must, of course, be mindful that erroneous conclusions of law may always be set aside, while findings of fact, to be rejected on appeal, must be “clearly erroneous.” Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962); McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). And “[a], finding of fact is clearly erroneous only when ‘although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed.’ ” Burgess v. Farrell Lines, 335 F.2d 885, 4th Cir., 1964, quoting from McAllister v. United States, 348 U.S. at 20, 75 S.Ct. at 8. We have such a firm conviction here.
In the first place, the fact of the pallet being lowered at approximately the same time as Smith’s attempted ascent is of negligible significance. A pallet measuring four feet square, suspended in a hatch opening of thirty by forty feet can in the present circumstances have no causal connection with the fall. The District Court appears to have acknowledged this by attributing some small fault to Smith because he “in all probability started to climb the ladder after the pallet was in the process of being lowered into the hold.” This conclusion was reached in spite of the court’s finding that libelant “stopped on the ladder and waited for it [the pallet] to pass him safely.” But whether the pallet was in motion when Smith started to climb or when he was near the top of the ladder is immaterial. There is nothing to show that his fall was in any way caused by the moving object.
Further, the fact that “the libelant knew of the condition of the recessed indentures” does not justify a finding of contributory negligence against him, for such a finding here is tantamount to holding that Smith assumed the risk of the defective ladder. Palermo v. Luckenbach S.S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957); Socony Vacuum Oil Co. v. Smith, 305 U.S. 424, 432, 59 S.Ct. 262, 83 L.Ed. 265 (1939). He may-not be charged “with assumption of the risk under another name.” Holley v. The Manfred Stansfield, 269 F.2d 317, 322 (4th Cir. 1959); see Bryant v. Partenreederei-Ernest Russ, 330 F.2d 185, 4th Cir., 1964. Clearly, to say that Smith was at fault for using the ladder when he knew of its deficiency does not differ in substance from invoking the doctrine of assumption of risk against him.
Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault, but mere knowledge of the unseaworthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence.
The remaining- reason that the District Court gave for finding contributory negligence was Smith’s “failure to exercise due care for his own safety in properly grabbing the rung or the top of the coaming” with his left hand. Smith himself was uncertain whether he was holding on to a rung with both hands or his left hand was merely resting on the hatch coaming. He gave both versions in his testimony, but neither version supports a finding of contributory negligence. A slip of the hand’s grip does not necessarily denote negligence and there is no basis for inferring that, but for the inadequate footing, the grip of the other hand would not have sufficed. Even assuming that the left hand slipped first, the loss of the grip of that hand would not likely have attained significance if the libelant’s foot were on a step wide enough for safety. Of course, in the other alternative, if the foot slipped first, throwing libelant off balance and releasing his grip, there could not arguably be contributory negligence. As Judge Boreman said in Mason v. Mathiasen Tanker Indus., Inc., 298 F.2d 28 (4th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962):
“No witness testified that plaintiff failed to grasp the handrail which was provided for anyone using^ the ladder, or that he failed, in any respect, to take proper precaution to insure his own safety. * * * Here defendant had the burden to prove by a preponderance of the evidence Mason’s contributory negligence. [citation omitted] No direct evidence was introduced to meet this burden. It cannot be reasonably argued that the physical facts involved in the* fall could be accepted as evidence of Mason’s failure to grasp the handrails or take other precautionary measures. It is a matter of common experience that a person can slip on a stairway, due to extremely slippery conditions, with such force that his hands would he loosened from the rail. No inference to the contrary could properly have been drawn by the jury from the evidence in this record. * * * ” 298 F.2d at 32. (Emphasis added.)
Like Mason, where it was contended that the “oil in his shoe soles caused ■him to slip while descending the steep steel stairs” and * the counterargument was made that the unseaworthiness was vitiated by Mason’s failure to grasp the handrail, our case involves the contention that the defective ladder was offset by Smith’s failure to take a firmer handhold on the hatch coaming. The question of Mason’s contributory negligence was held to have been erroneously submitted to the jury; Smith’s acts, too, afford no foundation for a finding of contributory negligence.
II.
We turn now to the claim of the United States for indemnification. In the contract the stevedore expressly undertook to indemnify the Government for injuries caused in whole or in part by the negligence of the stevedore. An exception to this broad liability — embodied in an “exculpatory clause” — precludes indemnity where an accident is caused by both the unseaworthiness of the vessel and the stevedore’s negligence, and the stevedore “by the exercise of due diligence” could not have discovered the defect or “otherwise have avoided” the accident or injury.
The third-party claim against Whitehall was disallowed by the District Court because “[u]nder all the facts of this case * * * [it] did not believe that the stevedore has failed to use reasonable care in loading the vessel with reasonable safety.”
In support of its appeal from this ruling, the United States presents two theories: First, that the terms of the stevedoring contract entitled it to indemnity because of Whitehall’s negligence, in failing to give its longshoremen warning of the unsafe condition of the ladder when it had actual knowledge of that fact, and also in failing to take “immediate corrective action” to eliminate the hazard. Second, that Whitehall’s conduct was a breach of its implied warranty of workmanlike service.
Whitehall answers that its failure to warn Smith and his fellow-longshoremen of the dangerous ladder and its failure to take remedial measures should be excused here, because the men were aware of the narrow toe clearance in the recessed indentures and could see for themselves the hazards inherent in its use. Thus, it is contended, warning was unnecessary. The District Court agreed with this argument. We cannot.
Incorporated in the stevedoring contract by reference was an agreement by Whitehall that it would “perform all services ‘in accordance with directives, publications, and standing operating procedures pertaining to safety.’ * * * issued from time to time by the U.S. Army Transportation Terminal, Hampton Roads.” One such “publication” was the “Manual of Regulations for Contractors Performing Services within Hampton Roads Army Terminal.” It obligated the stevedore to:
“(1) Conduct an aggressive safety program.
“(2) Supervise the inspection of premises, equipment and operations and initiate immediate corrective action when unsafe conditions * * * are noted.
“(3) Insure that all personnel under their jurisdiction receive proper training and instruction in the following :
“(a) Responsibility for accident prevention.
“(b) Proper accident reporting procedures.” (Emphasis added.)
By contract Whitehall incurred a dual obligation, both to properly instruct its employees in accident prevention and immediately to correct unsafe conditions known to it. A warning of danger-, without allowing the workman an alternative, might not have prevented this mishap; but substitution of a safe, alternative route certainly would have. None' of several possible measures — a Jacob’s ladder, clearing the escape hatch; or temporarily improving the faulty ladder, —was undertaken. Courts have not been disposed to turn aside claims for indemnity when the stevedore has had actual notice of a dangerous condition and has failed to take any step to remedy it. See, e. g., Cia Maritima del Nervion v. Flanagan Shipping Corp., 308 F.2d 120, 124 (5th Cir. 1962); Smith v. Jugosalvenska Linijska Plovidea, 278 F.2d 176, 180 (4th Cir. 1960). Compare Orlando v. Prudential S.S. Corp., 313 F.2d 822 (2d Cir. 1963). We eannot sanction holding the stevedore faultless and denying the longshoreman his remedy, when the stevedore does nothing to avoid a known danger and the longshoreman is given no practical choice but to work under dangerous conditions.
The fact that Whitehall’s representatives examined the ladder, and felt it reasonably safe for use, cannot excuse failure to discharge contractual obligations. The duty that a stevedore assumes as an expert is not to be determined by subjective considerations. The stevedore may think the ship safe and seaworthy, but this is no defense if in fact it was unsafe and unseaworthy according to applicable standards. Ignoring naval specifications cannot be jus- • tified simply because they had been ignored in the past without harmful consequence.
In actual fact the vessel was unsea-worthy, as the District Court found. This finding is not challenged on appeal.
That the longshoremen also knew of the dangerous condition does not relieve the stevedore of his contractual obligation to instruct and warn them, to enforce the warnings, and to abate the hazard by any practical means. E. g., Santomarco v. United States, 277 F.2d 255 (2d Cir.), cert. denied, American Stevedores v. United States, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960) ; A/S J. Ludwig Mowinckels Rederi v. Commercial Stevedoring Co., 256 F.2d 227 (2d Cir.), cert. dismissed, 358 U.S. 801, 79 S.Ct. 9, 3 L.Ed.2d 49 (1958). Compare United States v. Harrison, 245 F.2d 911 (9th Cir. 1957). If the longshoremen’s knowledge could excuse the stevedore’s default, the burden imposed upon the stevedore by contract would be transferred to the employees. The contractual duty is the stevedore’s, not the longshoremen’s.
On first impression it may seem inequitable to allow the shipowner to recover indemnity for damages resulting from an unseaworthy condition created by it. But the United States is entitled to its contractual rights absent a showing that it has committed a material breach of the agreement. Pettus v. Grace Line, Inc., 305 F.2d 151 (2d Cir. 1962); Calmar S.S. Corp. v. Nacirema Operating Co., 266 F.2d 79, 80 (4th Cir. 1959). Whitehall, it is true, argued that the shipowner is foreclosed from indemnity due to “conduct on its part sufficient to preclude recovery,” relying on language in Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 441, 2 L.Ed.2d 491 (1958). But the reliance is not justified by the holding of that casé or by later decisions in the circuits. Under contracts such as the one now in question, it has been held that the stevedore must fully indemnify for all damages caused by his fault, even though the shipowner was also at fault. See, e. g., Shenker v. United States, 322 F.2d 622, 629 (2d Cir. 1963). These cases are consistent with Judge Soper’s statement in MooreMcCormack Lines, Inc. v. Maryland Ship Ceiling Co., 311 F.2d 663 (4th Cir. 1962):
“It will be observed that in all these cases the ship’s right of indemnity was preserved, although the unseaworthiness of the ship was established, because it was also shown that the stevedoring company, having knowledge of the defective condition of the ship, carelessly made use of defective equipment or proceeded with the work under defective conditions so that its actions constituted the immediate cause of the injury.” 311 F.2d at 668.
The immediate cause of Smith’s harm was the default of Whitehall, not the “conduct” of the United States. Because the stevedore was negligent and failed to perform its contractual obligation to exercise “due diligence,” the exculpatory clause in the contract is unavailable to it.
Reversed, with directions to enter judgment for libelant for $12,326.43; and judgment for the United States on the third-party claim.
. Nicroli v. Den Norske Afrika-Og, 332 F.2d 651 (2d Cir. 1964); Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457 (4th Cir. 1963), cert. denied, 376 U.S. 970, 84 S.Ct. 1136, 12 L.Ed.2d 84 (1964); Ktistakis v. United Cross Navigation Co., 316 F.2d 869, (2d Cir. 1963); Scarberry v. Ohio River Co., 217 F.Supp. 189 (N.D. W.Va.1963).
. See, e. g., Ferrigno v. Ocean Transport, Ltd., 201 F.Supp. 173, 178 (S.D.N.Y. 1961), rev’d on other grounds, 309 F.2d 445 (2d Cir. 1962); Hildebrand v. United States, 134 F.Supp. 514, 517 (S.D.N.Y. 1954) , affirmed, 226 F.2d 215 (2d Cir. 1955) ; Dixon v. United States, 120 F.Supp. 747 (S.D.N.Y.1954), modified, 219 F.2d 10 (2d Cir. 1955).
. In oral argument to this court counsel for the Government stressed that Smith was wearing greasy gloves during his climb. The court made no such finding. Since' the District Court makes no mention of the gloves in its opinion, we can presume that their condition played no .part in the resolution of the contributory negligence question.
. The contract between the United States and Whitehall is as follows:
“Clause 12. Liability and Insurance.
“a. The Contractor.
*****
“(2) shall be responsible for and shall hold the Government harmless from any and all loss, damage, liability and expense for * * * bodily injury to or death of persons occasioned either in whole or in part by the negligence or fault of the Contractor, his officers, agents, or employees in the performance of work under this contract. The general liability and responsibility of the Contractor under this Clause are subject only to the following specific limitations.
“b. The Contractor shall not be responsible for and does not agree to hold the Government harmless from loss or damage to property or bodily injury to or death of persons:
“(1) If the unseaworthiness of the vessel or failure or defect of the gear or equipment furnished by the Government contributed jointly with the fault or negligence of the Contractor in causing such damage, injury or death, and the Contractor * * * by the exercise of due diligence, could not have discovered such unseaworthiness or defect of gear or equipment, or through the exercise of due diligence could not otherwise have avoided such damage, injury or death.”
. Because the District Court found Smith contributo rily negligent, the United States also urged that the conduct of this employee of Whitehall rendered it liable for indemnity under the contract. See Shenker v. American Stevedores, Inc., 322 F.2d 622 (2d Cir. 1963), cert. denied, 376 U.S. 907, 84 S.Ct. 659, 11 L.Ed.2d 606 (1964); Santomarco v. United States, 277 F.2d 255 (2d Cir.), cert. denied sub nom., American Stevedores, Inc. v. United States, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960). But we do not consider this point, having exonerated Smith of any contributory fault.
. Regulations issued pursuant to the Longshoremen’s and Harbor Workers’ Compensation. Act, 29 C.F.R.. § 9.25 (1963 ed.), impose further obligations to' provide a “safe and accessible ladder’-’ and, where unsafe, “prohibit its use by employees.”
. Since indemnity is due on the express terms of the agreement, it is unneces.sary to consider the applicability of the theory of implied warranty. See D’Agosta v. Royal Netherlands S.S. Co., 301 F.2d 105 (2d Cir. 1962).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_lcdispositiondirection
|
A
|
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
MORGAN v. ILLINOIS
No. 91-5118.
Argued January 21, 1992
Decided June 15, 1992
White, J., delivered the opinion of the Court, in which Blackmun, Stevens, O’Connor, Kennedy, and Souter, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 739.
Allen H. Andrews III argued the cause and filed briefs for petitioner.
Kenneth L. Gillis argued the cause for respondent. With him on the brief were Roland W. Burris, Attorney General of Illinois, Terence M. Madsen, Assistant Attorney General, Jack O’Malley, Randall E. Roberts, Sally L. Dilgart, William D. Carroll, and Marie Quinlivan Czech.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Robert L. Graham, Laura A Raster, Harvey Grossman, John A Powell, Steven Shapiro, and Diann Rust-Tierney; and for the National Association of Criminal Defense Lawyers by Andrea D. Lyon.
Justice White
delivered the opinion of the Court.
We decide here whether, during voir dire for a capital offense, a state trial court may, consistent with the Due Process Clause of the Fourteenth Amendment, refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction of the defendant.
I
The trial of a capital offense in Illinois is conducted in two phases. The defendant must first be convicted of first-degree murder, as defined in Ill. Rev. Stat., ch. 38, ¶ 9-1(a) (Supp. 1990). Illinois law uses the same jury that decided guilt to determine whether the death penalty shall be imposed, and upon conviction, a separate sentencing heating commences to determine the existence of aggravating and mitigating factors. ¶ 9—1(d)(1). To be eligible for the death penalty, the jury must find unanimously, ¶ 9—1(g), and beyond a reasonable doubt, ¶ 9-1(f), that the defendant was at least 18 years old at the time of the murder, and that at least 1 of 10 enumerated aggravating factors exists, ¶ 9—1(b). See, e. g., ¶ 9-1(b)(5) (murder for hire or by contract); ¶ 9-1(b)(10) (premeditated murder by preconceived plan). If the jury finds none of the statutory aggravating factors to exist, the defendant is sentenced to a term of imprisonment. ¶ 9-l(g). “If there is a unanimous finding by the jury that one or more of the factors set forth in subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed.” Ibid. As part of this balance, the jury is instructed to consider mitigating factors existing in the case, five of which are enumerated, but which are not exclusive. ¶ 9-1(c). The State may also present evidence of relevant aggravating factors beyond those enumerated by statute. Ibid. “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” ¶ 9-1 (g).
Petitioner Derrick Morgan was convicted in Cook County, Illinois, of first-degree murder and sentenced to death. The evidence at trial amply proved that petitioner was hired to kill a narcotics dealer apparently competing with the El Rukns, one of Chicago’s violent inner-city gangs. For $4,000, petitioner lured the dealer, who was a friend, into an abandoned apartment and shot him in the head six times. Upon consideration of factors in aggravation and mitigation, the jury sentenced him to death.
Three separate venires were required to be called before the jury was finally chosen. In accordance with Illinois law, the trial court, rather than the attorneys, conducted voir dire. People v. Gacy, 103 Ill. 2d 1, 36-37, 468 N. E. 2d 1171, 1184-1185 (1984). The State, having elected to pursue capital punishment, requested inquiry permitted by Witherspoon v. Illinois, 391 U. S. 510 (1968), to determine whether any potential juror would in all instances refuse to impose the death penalty upon-conviction of the offense. Accordingly, the trial court, over opposition from the defense, questioned each venire whether any member had moral or religious principles so strong that he or she could not impose the death penalty “regardless of the facts.” App. 9, 78, 90. Seventeen potential jurors were excused when they expressed substantial doubts about their ability to follow Illinois law in deciding whether to impose a sentence of death. Id., at 9-22, 79-83, 90-94. All of the jurors eventually empaneled were also questioned individually under Wither-spoon, each receiving and responding in the negative to this question or a slight variation: “Would you automatically vote against the death penalty no matter what the facts of the case were?” App. 33; see id., at 36, 41, 48, 55, 59, 64, 69, 76, 88, 97, 103.
After seven members of the first venire had been questioned, including three who eventually became jurors, petitioner’s counsel requested the trial court to ask all prospective jurors the following question: “If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?” Id., at 44. The trial court refused this request, stating that it had “asked the question in a different vein substantially in that nature.” Ibid.
Prior to the voir dire of the three venires, the trial court had explained in general terms the dictates of Illinois procedure in capital trials, as outlined above. See id., at 24, 77-78, 90. During voir dire, the trial court received from 9 of the 12 jurors empaneled an affirmative response to variations of this question: “Would you follow my instructions on the law even though you may not agree?” Id., at 30; see id., at 38, 43, 49, 56, 60, 64, 69, 107. However, the trial court did not ask three of the jurors this question in any way. See id., at 73-77, 83-89, 94-100. Every juror eventually empaneled was asked generally whether each could be fair and impartial. Each juror responded appropriately to at least one of these questions, or a variation: (1) “Do you know of any reason why you cannot be fair and impartial?”, id., at 33; see id., at 41, 49, 64, 68, 75, 88, 99; (2) “Do you feel you can give both sides a fair trial?”, id., at 70; see id., at 35, 38, 43, 49, 56, 61, 65, 77, 100, 110. When empaneled, each member of the jury further swore an oath to “well and truly try the issues joined herein and true deliverance make between the People of the State of Illinois and the defendant at the bar and a true verdict render according to the law and the evidence.” 1 Tr. 601-602; see id., at 264, 370, 429, 507, 544, 575-576.
On appeal, the Illinois Supreme Court affirmed petitioner’s conviction and death sentence, rejecting petitioner’s claim that, pursuant to Ross v. Oklahoma, 487 U. S. 81 (1988), voir dire must include the “life qualifying” or “reverse-Witherspoon” question upon request. The Illinois Supreme Court concluded that nothing requires a trial court to question potential jurors so as to identify and exclude any who would vote for the death penalty in every case after conviction for a capital offense. 142 Ill. 2d 410, 470, 568 N. E. 2d 755, 778 (1991). That court also found no violation of Ross, concluding instead that petitioner’s jury “was selected from a fair cross-section of the community, each juror swore to uphold the law regardless of his or her personal feelings, and no juror expressed any views that would call his or her impartiality into question.” 142 Ill. 2d, at 470, 568 N. E. 2d, at 778.
We granted certiorari because of the considerable disagreement among state courts of last resort on the question at issue in this ease. 502 U. S. 905 (1991). We now reverse the judgment of the Illinois Supreme Court.
) — I H-1
We have emphasized previously that there is not “any one right way for a State to set up its capital sentencing scheme,” Spaziano v. Florida, 468 U. S. 447, 464 (1984) (citations omitted), and that no State is constitutionally required by the Sixth Amendment or otherwise to provide for jury determination of whether the death penalty shall be imposed on a capital defendant, ibid. Illinois has chosen, however, to delegate to the jury this task in the penalty phase of capital trials in addition to its duty to determine guilt or innocence of the underlying crime. The issue, therefore, is whether petitioner is entitled to relief under the Due Process Clause of the Fourteenth Amendment. We conclude that he is, and in the course of doing so we deal with four issues: whether a jury provided to a capital defendant at the sentencing phase must be impartial; whether such defendant is entitled to challenge for cause and have removed on the ground of bias a prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court’s instructions of law; whether on voir dire the court must, on defendant’s request, inquire into the prospective jurors’ views on capital punishment; and whether the voir dire in this case was constitutionally sufficient.
A
Duncan v. Louisiana, 391 U. S. 145 (1968), held that the Fourteenth Amendment guaranteed a right of jury trial in all state criminal cases which, were they tried in a federal court, would come within the Sixth Amendment’s guarantee of trial by jury. Prior to this decision applying the Sixth Amendment’s jury trial provision to the States, we recognized in Irvin v. Dowd, 366 U. S. 717 (1961), and in Turner v. Louisiana, 379 U. S. 466 (1965), that the Fourteenth Amendment’s Due Process Clause itself independently required the impartiality of any jury empaneled to try a cause:
“Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State’s criminal procedure, Fay v. New York, 332 U. S. 261 [(1947)]; Palko v. Connecticut, 302 U. S. 319 [(1937)], every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257 [(1948)]; Tumey v. Ohio, 273 U. S. 510 [(1927)]. ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136 [(1955)]. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199 [(I960)]. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). ‘The theory of the law is that a juror who has formed an opinion cannot he impartial.’ Reynolds v. United States, 98 U. S. 145, 155 [(1879)].” Irvin v. Dowd, supra, at 721-722 (footnote omitted).
In Turner v. Louisiana, we relied on this passage to delineate “the nature of the jury trial which the Fourteenth Amendment commands when trial by jury is what the State has purported to accord.” 379 U. S., at 471. In short, as reflected in the passage above, due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment. Id.,,at 472, and n. 10; cf. Groppi v. Wisconsin, 400 U. S. 505, 508-511 (1971).
Thus it is that our decisions dealing with capital sentencing juries and presenting issues most analogous to that which we decide here today, e. g., Witherspoon v. Illinois, 391 U. S., at 518; Adams v. Texas, 448 U. S. 38, 40 (1980); Wainwright v. Witt, 469 U. S. 412, 423 (1985); Ross v. Oklahoma, 487 U. S., at 85, have relied on the strictures dictated by the Sixth and Fourteenth Amendments to ensure the impartiality of any jury that will undertake capital sentencing. See also Turner v. Murray, 476 U. S. 28, 36, and n. 9 (1986) (plurality opinion).
B
Witt held that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment... is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” 469 U. S., at 424 (quoting Adams v. Texas, supra, at 45). Under this standard, it is clear from Witt and Adams, the progeny of Witherspoon, that a juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause.
Thereafter, in Ross v. Oklahoma, supra, a state trial court refused to remove for cause a juror who declared he would vote to impose death automatically if the jury found the defendant guilty. That juror, however, was removed by the defendant’s use of a peremptory challenge, and for that reason the death sentence could be affirmed. But in the course of reaching this result, we announced our considered view that because the Constitution guarantees a defendant on trial for his life the right to an impartial jury, 487 U. S., at 85, the trial court’s failure to remove the juror for cause was constitutional error under the standard, enunciated in Witt. We emphasized that “[h]ad [this juror] sat. on the jury that ultimately sentenced petitioner to death,' and had petitioner properly preserved his right to challenge the trial court’s failure to remove [the juror] for cause, the sentence would have to be overturned.” 487 U. S., at 85 (citing Adams, supra).
We reiterate this view today. A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.
C
Illinois, in fact, raises no challenge to the foregoing precepts, but argues instead that the trial court, in its discretion, may refuse direct inquiry into this matter, so long as its other questioning purports to assure the defendant a fair and impartial jury able to follow the law. It is true that “[v]oir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ ” Ristaino v. Ross, 424 U. S. 589, 594 (1976) (quoting Connors v. United States, 158 U. S. 408, 413 (1895)). The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors. Dennis v. United States, 339 U. S. 162, 171-172 (1950); Morford v. United States, 339 U. S. 258, 259 (1950). “Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States, 451 U. S. 182, 188 (1981) (plurality opinion). Hence, “[t]he exercise of [the trial court’s] discretion, and the restriction upon inquiries at the request of counsel, [are] subject to the essential demands of fairness.” Aldridge v. United States, 283 U. S. 308, 310 (1931).
The adequacy of voir dire is not easily the subject of appellate review, Rosales-Lopez, supra, at 188, but we have not hesitated, particularly in capital cases, to find that certain inquiries must be made to effectuate constitutional protections, see, e. g., Turner v. Murray, supra, at 36-37; Ham v. South Carolina, 409 U. S. 524, 526-527 (1973). Our holding in Ham, for instance, was as follows:
“Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these ‘essential demands of fairness,’ e.g., Lisenba v. California, 314 U. S. 219, 236 (1941), and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, Slaughter-House Cases, 16 Wall. 36, 81 (1873), we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias.” Id., at 526-527.
We have also come to recognize that the principles first propounded in Witherspoon v. Illinois, 391 U. S. 510 (1968), the reverse of which are at issue here, demand inquiry into whether the views of prospective jurors on the death penalty would disqualify them from sitting. At its inception, With-erspoon conferred no “right” on a State, but was in reality a limitation of a State’s making unlimited challenges for cause to exclude those jurors who “might hesitate” to return a verdict imposing death. Id., at 512-513; see Adams v. Texas, 448 U. S., at 47-49. Upon consideration of the jury in With-erspoon, drawn as it was from a venire from which the State struck any juror expressing qualms about the death penalty, we found it “self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments.” 391 U. S., at 518. To preserve this impartiality, Witherspoon constrained the State’s exercise of challenges for cause:
“[A] State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” Id., at 520-523 (footnotes omitted).
See also Lockhart v. McCree, 476 U. S. 162, 179-180 (1986). Witherspoon limited a State’s power broadly to exclude jurors hesitant in their ability to sentence a defendant to death, but nothing in that decision questioned “the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear ... that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them . . . .” 391 U. S., at 522, n. 21 (emphasis in original); see also id., at 513-514.
In Wainwright v. Witt, 469 U. S. 412 (1985), we revisited footnote 21 of Witherspoon, and held affirmatively that “the State may exclude from capital sentencing juries that ‘class’ of veniremen whose views would prevent or substantially impair the performance of their duties in accord-anee with their instructions or their oaths.” 469 U. S., at 424, n. 5; see also Lockett v. Ohio, 438 U. S. 586, 595-596 (1978). Indeed, in Lockhart v. McCree we thereafter spoke in terms of “ ‘Witherspoon-exchidables’ ” whose removal for cause “serves the State’s entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a capital] case.” 476 U. S., at 180. From Witt, moreover, it was but a very short step to observe as well ■ in Lockhart:
“[T]he State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant’s guilt or innocence. Ipso facto, the State must be given the opportunity to identify such prospective jurors by questioning them at voir dire about their views of the death penalty.” 476 U. S., at 170, n. 7.
This passage in Lockhart expanded but briefly upon what we had already recognized in Witt: “As with any other trial situation where an adversary wishes to exclude a juror because of bias, then, it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. . It is then the trial judge’s duty to determine whether the challenge is proper.” 469 U. S., at 423 (citation omitted; emphasis added).
We deal here with petitioner’s ability to exercise intelligently his complementary challenge for cause against those biased persons on the venire who as jurors would unwaveringly impose, death after a finding of guilt. Were voir dire not available to lay bare the foundation of petitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the absence of questioning, to strike those who would never do so.
D
The only issue remaining is whether the questions propounded by the trial court were sufficient to satisfy petitioner’s right to make inquiry. As noted above, Illinois suggests that general fairness and “follow the law” questions, of the like employed by the trial court here, are enough to detect those in the venire who automatically would vote for the death penalty. The State’s own request for questioning under Witherspoon and Witt of course belies this argument. Witherspoon and its succeeding cases would be in large measure superfluous were this Court convinced that such general inquiries could detect those jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath. But such jurors — whether they be unalterably in favor of, or opposed to, the death penalty in every case — by definition are ones who cannot perform their duties in accordance with law, their protestations to the contrary notwithstanding.
As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed. More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual’s inability to follow the law. See supra, at 729. Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. See Turner v. Murray, 476 U. S., at 34-35 (plurality opinion). It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception. The risk that such jurors may have been empaneled in this case and “infected petitioner’s capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.” Id., at 36 (footnote omitted). Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State’s case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.
r-H HH I — I
The defendant may, however, elect to waive sentencing by the jury. Ill. Rev. Stat., ch. 38, ¶ 9-1(d)(3) (Supp. 1990). The procedure and standards that guide a sentencing judge, ¶ 9-1(h), are identical to those that guide a jury, ¶ 9-1(g).
Such questioning led to the removal for cause of one prospective juror, following this exchange:
“Q Would you follow my instructions on the law in the case even though you might not agree?
“A Yes.
“Q Do you know any reason why you cannot give this defendant a fair trial?
“A I would have no problem during the trial. If it came — I had a friend’s parents murdered twelve years ago before capital punishment. I would give a fair trial. If he is found guilty, I would want him hung.
“Q You couldn’t be fair and impartial throughout the proceedings?
“A No.
“Q You are excused.” App. 72-73.
The Illinois Supreme Court has subsequently emphasized that decision in this case was not meant “to imply that the ‘reverse-Witherspoon’ question is inappropriate. Indeed, given the type of scrutiny capital cases receive on review, one would think trial courts would go out of their way to afford a defendant every possible safeguard. The ‘reverse-Witherspoon’ question may not be the only means of ensuring defendant an impartial jury, but it is certainly the most direct. The best way to ensure that a prospective juror would not automatically vote for the death penalty is to ask.” People v. Jackson, 145 Ill. 2d 43, 110, 582 N. E. 2d 125, 156 (1991). See also State v. Atkins, 303 S. C. 214, 222-223, 399 S. E. 2d 760, 765 (1990).
Delaware and South Carolina agree with Illinois that the “reverse-Witherspoon” inquiry is unnecessary so long as, by questions and oath, each juror swears to be fair and impartial and to follow the law. See Riley v. State, 585 A. 2d 719, 725-726 (Del. 1990), cert. denied, 501 U. S. 1223 (1991); State v. Hyman, 276 S. C. 559, 563, 281 S. E. 2d 209, 211-212 (1981), cert. denied, 458 U. S. 1122 (1982). Missouri appears to be of this view as well. State v. McMillin, 783 S. W. 2d 82, 94 (Mo.), cert. denied, 498 U. S. 881 (1990). California, Georgia, Louisiana, New Jersey, North Carolina, Utah, and Virginia disagree, see People v. Bittaker, 48 Cal. 3d 1046, 1083-1084, 774 P. 2d 659, 679 (1989); Skipper v. State, 257 Ga. 802, 806-807, 364 S. E. 2d 835, 839 (1988); State v. Henry, 196 La. 217, 232-234, 198 So. 910, 914-916 (1940); State v. Williams, 113 N. J. 393, 416-417, 550 A. 2d 1172, 1182-1184 (1988); State v. Rogers, 316 N. C. 203, 216-218, 341 S. E. 2d 713, 722 (1986); State v. Norton, 675 P. 2d 577, 588-589 (Utah 1983), cert. denied, 466 U. S. 942 (1984); Patterson v. Commonwealth, 222 Va. 653, 657-660, 283 S. E. 2d 212, 214-216 (1981), as apparently do Arkansas, Florida, and Kentucky, see Pickens v. State, 292 Ark. 362, 366-367, 730 S. W. 2d 230, 233-234, cert. denied, 484 U. S. 917 (1987); Gore v. State, 475 So. 2d 1205, 1206-1208 (Fla. 1985), cert. denied, 475 U. S. 1031 (1986); Morris v. Commonwealth, 766 S. W. 2d 58, 60 (Ky. 1989). Lower courts in Alabama also follow this latter view. See Bracewell v. State, 506 So. 2d 354, 358 (Ala. Crim. App. 1986); cf. Henderson v. State, 583 So. 2d 276, 283-284 (Ala. Crim. App. 1990) (no “plain error” in trial court’s failure sua sponte to “life qualify” the prospective jurors), aff’d, 583 So. 2d 305 (1991).
See Mu’Min v. Virginia, 500 U. S. 415
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
Theodore H. FRANK, et al., Petitioners
v.
Paloma GAOS, Individually and on Behalf of All Others Similarly Situated, et al.
No. 17-961
Supreme Court of the United States.
March 20, 2019
Kassra P. Nassiri, Nassiri & Jung LLP, San Francisco, CA, for Respondents.
Theodore H. Frank, Melissa Holyoak, Anna St. John, Competitive Enterprise Institute, Washington, DC, for Petitioners.
Kassra P. Nassiri, Nassiri & Jung LLP, San Francisco, CA, Jeffrey A. Lamken, Michael G. Pattillo, Jr., James A. Barta, William J. Cooper, MoloLamken LLP, Washington, DC, Michael Aschenbrener, KamberLaw, LLC, Denver, CO, Jordan A. Rice, MoloLamken LLP, Chicago, IL, for Respondents.
Randall W. Edwards, O'Melveny & Myers LLP, San Francisco, CA, Jed W. Glickstein, Samantha C. Booth, Mayer Brown LLP, Chicago, IL, Donald M. Falk, Edward D. Johnson, Mayer Brown LLP, Palo Alto, CA, Brian D. Netter, Daniel E. Jones, Mayer Brown LLP, Washington, DC, for Respondent Google LLC.
Per Curiam.
Three named plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act. The parties negotiated a settlement agreement that would require Google to include certain disclosures on some of its webpages and would distribute more than $ 5 million to cy pres recipients, more than $ 2 million to class counsel, and no money to absent class members. We granted certiorari to review whether such cy pres settlements satisfy the requirement that class settlements be "fair, reasonable, and adequate." Fed. Rule Civ. Proc. 23(e)(2). Because there remain substantial questions about whether any of the named plaintiffs has standing to sue in light of our decision in Spokeo , Inc. v. Robins , 578 U. S. ----, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), we vacate the judgment of the Ninth Circuit and remand for further proceedings.
Google operates an Internet search engine. The search engine allows users to search for a word or phrase by typing a query into the Google website. Google returns a list of webpages that are relevant to the indicated term or phrase. The complaints alleged that when an Internet user conducted a Google search and clicked on a hyperlink to open one of the webpages listed on the search results page, Google transmitted information including the terms of the search to the server that hosted the selected webpage. This so-called referrer header told the server that the user arrived at the webpage by searching for particular terms on Google's website.
Paloma Gaos challenged Google's use of referrer headers. She filed a complaint in Federal District Court on behalf of herself and a putative class of people who conducted a Google search and clicked on any of the resulting links within a certain time period. Gaos alleged that Google's transmission of users' search terms in referrer headers violated the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA prohibits "a person or entity providing an electronic communication service to the public" from "knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service." § 2702(a)(1). The Act also creates a private right of action that entitles any "person aggrieved by any violation" to "recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." § 2707(a). Gaos also asserted several state law claims.
Google moved to dismiss for lack of standing three times. Its first attempt was successful. The District Court reasoned that although "a plaintiff may establish standing through allegations of violation of a statutory right," Gaos had "failed to plead facts sufficient to support a claim for violation of her statutory rights." Gaos v. Google, Inc. , 2011 WL 7295480, *3 (N.D. Cal., Apr. 7, 2011). In particular, the court faulted Gaos for failing to plead "that she clicked on a link from the Google search page." Ibid.
After Gaos filed an amended complaint, Google again moved to dismiss. That second attempt was partially successful. The District Court dismissed Gaos' state law claims, but denied the motion as to her SCA claims. The court reasoned that because the SCA created a right to be free from the unlawful disclosure of certain communications, and because Gaos alleged a violation of the SCA that was specific to her (i.e. , based on a search she conducted), Gaos alleged a concrete and particularized injury. Gaos v. Google Inc. , 2012 WL 1094646, *4 (N.D. Cal., Mar. 29, 2012). The court rested that conclusion on Edwards v. First American Corp. , 610 F.3d 514 (2010) -a Ninth Circuit decision reasoning that an Article III injury exists whenever a statute gives an individual a statutory cause of action and the plaintiff claims that the defendant violated the statute. 2012 WL 1094646, *3.
After the District Court ruled on Google's second motion to dismiss, we granted certiorari in Edwards to address whether an alleged statutory violation alone can support standing. First American Financial Corp. v. Edwards , 564 U.S. 1018, 131 S.Ct. 3022, 180 L.Ed.2d 843 (2011). In the meantime, Gaos and an additional named plaintiff filed a second amended complaint against Google. Google once again moved to dismiss. Google argued that the named plaintiffs did not have standing to bring their SCA claims because they had failed to allege facts establishing a cognizable injury. Google recognized that the District Court had previously relied on Edwards to find standing based on the alleged violation of a statutory right. But because this Court had agreed to review Edwards , Google explained that it would continue to challenge the District Court's conclusion. We eventually dismissed Edwards as improvidently granted, 567 U.S. 756, 132 S.Ct. 2536, 183 L.Ed.2d 611 (2012) (per curiam ), and Google then withdrew its argument that Gaos lacked standing for the SCA claims.
Gaos' putative class action was consolidated with a similar complaint, and the parties negotiated a classwide settlement. The terms of their agreement required Google to include certain disclosures about referrer headers on three of its webpages. Google could, however, continue its practice of transmitting users' search terms in referrer headers. Google also agreed to pay $ 8.5 million. None of those funds would be distributed to absent class members. Instead, most of the money would be distributed to six cy pres recipients. In the class action context, cy pres refers to the practice of distributing settlement funds not amenable to individual claims or meaningful pro rata distribution to nonprofit organizations whose work is determined to indirectly benefit class members. Black's Law Dictionary 470 (10th ed. 2014). In this case, the cy pres recipients were selected by class counsel and Google to "promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet." App. to Pet. for Cert. 84. The rest of the funds would be used for administrative costs and fees, given to the named plaintiffs in the form of incentive payments, and awarded to class counsel as attorney's fees.
The District Court granted preliminary certification of the class and preliminary approval of the settlement. Five class members, including petitioners Theodore Frank and Melissa Holyoak, objected to the settlement on several grounds. They complained that settlements providing only cy pres relief do not comply with the requirements of Rule 23(e), that cy pres relief was not justified in this case, and that conflicts of interest infected the selection of the cy pres recipients. After a hearing, the District Court granted final approval of the settlement.
Frank and Holyoak appealed. After briefing before the Ninth Circuit was complete, but prior to decision by that court, we issued our opinion in Spokeo , Inc. v. Robins , 578 U. S. ----, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). In Spokeo , we held that "Article III standing requires a concrete injury even in the context of a statutory violation." Id. , at ----, 136 S.Ct., at 1549. We rejected the premise, relied on in the decision then under review and in Edwards , that "a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." 578 U. S., at ----, 136 S.Ct., at 1549 ; see also id. , at ----, 136 S.Ct., at 1546-1547. Google notified the Ninth Circuit of our opinion.
A divided panel of the Ninth Circuit affirmed, without addressing Spokeo . In re Google Referrer Header Privacy Litigation , 869 F.3d 737 (2017). We granted certiorari, 584 U. S. ----, 138 S.Ct. 1697, 200 L.Ed.2d 948 (2018), to decide whether a class action settlement that provides a cy pres award but no direct relief to class members satisfies the requirement that a settlement binding class members be "fair, reasonable, and adequate." Fed. Rule Civ. Proc. 23(e)(2).
In briefing on the merits before this Court, the Solicitor General filed a brief as amicus curiae supporting neither party. He urged us to vacate and remand the case for the lower courts to address standing. The Government argued that there is a substantial open question about whether any named plaintiff in the class action actually had standing in the District Court. Because Google withdrew its standing challenge after we dismissed Edwards as improvidently granted, neither the District Court nor the Ninth Circuit ever opined on whether any named plaintiff sufficiently alleged standing in the operative complaint.
"We have an obligation to assure ourselves of litigants' standing under Article III." DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; internal quotation marks omitted). That obligation extends to court approval of proposed class action settlements. In ordinary non-class litigation, parties are free to settle their disputes on their own terms, and plaintiffs may voluntarily dismiss their claims without a court order. Fed. Rule Civ. Proc. 41(a)(1)(A). By contrast, in a class action, the "claims, issues, or defenses of a certified class-or a class proposed to be certified for purposes of settlement-may be settled, voluntarily dismissed, or compromised only with the court's approval." Fed. Rule Civ. Proc. 23(e). A court is powerless to approve a proposed class settlement if it lacks jurisdiction over the dispute, and federal courts lack jurisdiction if no named plaintiff has standing. Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26, 40, n. 20, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
When the District Court ruled on Google's second motion to dismiss, it relied on Edwards to hold that Gaos had standing to assert a claim under the SCA. Our decision in Spokeo abrogated the ruling in Edwards that the violation of a statutory right automatically satisfies the injury-in-fact requirement whenever a statute authorizes a person to sue to vindicate that right. 578 U. S., at ----, 136 S.Ct., at 1549 ; see Edwards , 610 F.3d at 517-518. Since that time, no court in this case has analyzed whether any named plaintiff has alleged SCA violations that are sufficiently concrete and particularized to support standing. After oral argument, we ordered supplemental briefing from the parties and Solicitor General to address that question.
After reviewing the supplemental briefs, we conclude that the case should be remanded for the courts below to address the plaintiffs' standing in light of Spokeo . The supplemental briefs filed in response to our order raise a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument. We "are a court of review, not of first view." Cutter v. Wilkinson , 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Resolution of the standing question should take place in the District Court or the Ninth Circuit in the first instance. We therefore vacate and remand for further proceedings. Nothing in our opinion should be interpreted as expressing a view on any particular resolution of the standing question.
* * *
The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_casetyp1_2-2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Tyrone BULLOCK, Appellant v. Martin SUOMELA.
No. 82-3343.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) March 25, 1983.
Decided June 21, 1983.
Tyrone Bullock, pro se.
LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Francis R. Filipi, Deputy Attys. Gen., Harrisburg, Pa., for appellee.
Before GIBBONS, GARTH and MARIS, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff, an inmate of the Pennsylvania Correctional Institution at Hunting-don, filed a civil rights complaint pro se against the defendant, a member of the staff of that institution. He also requested leave to proceed in forma pauperis without prepayment of fees and costs. In support of that request he filed an affidavit which did not contain all of the information required by the established procedure of the district court. Further, he marked “Refused” on a certificate attached to the affidavit which was to have been executed by prison officials. And, finally, he indicated that he did not have any money in his prison account.
The magistrate to whom the case was referred accordingly issued an order requiring prison officials to submit further financial information. Thereafter, an affidavit was filed which indicated that on March 16, 1982, the date on which the plaintiff executed his affidavit stating that he had no funds in his prison account, that account actually had a balance of $4.76, that his average monthly wages were $17.48 and that during the 6-month period preceding suit he had receipts of $144.22. The magistrate thereupon ordered the plaintiff to pay a partial filing fee of $4.00 or submit an explanation demonstrating that he lacked access to sufficient funds to make the partial payment. Plaintiff responded with an affidavit indicating that he should be excused from paying the filing fee on the basis that his only source of income was from prison wages which he needed to purchase essential cosmetics, legal paper, photocopies and postage stamps and that the then present balance in his account was zero. The magistrate considered nonetheless that it would not be burdensome on the plaintiff to pay the modest partial filing fee which he had ordered. The plaintiff failed to do so, however, and on the report and recommendation of the magistrate and after considering exceptions thereto filed by plaintiff, the district court dismissed the complaint with prejudice. The present appeal by the plaintiff followed.
The magistrate and the district court acted pursuant to a procedure followed in that court under which a plaintiff seeking to proceed pro se without prepayment of fees and costs who is without funds to prepay them in full is authorized to proceed in forma pauperis upon payment of such lesser sum in part payment as his financial situation may fairly permit. A number of courts of appeals and district courts have approved this procedure as within the authority conferred by 28 U.S.C. § 1915(a); Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Zaun v. Dobbin, 628 F.2d 990 (7th Cir.1980); In re Stump, 449 F.2d 1297 (1st Cir.1971); Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex. 1977); and so do we. We, accordingly, reach the question which the plaintiff presents on this appeal, namely, that the district court was guilty of an abuse of discretion in requiring him to pay $4.00 of the filing fee as a prerequisite to being granted status in forma pauperis and, therefore, erred in dismissing his complaint because of his failure to do so.
As this and other courts have pointed out, the procedure followed in the district court may not be so employed as to leave a pro se litigant absolutely penniless. As this court said in Souder v. McGuire, 516 F.2d 820, 824 (3rd Cir.1975), “we do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond the food, clothing, and lodging already furnished by the state.... These need not be surrendered in order for a prisoner or a mental patient to litigate in forma pauperis in the district court.” What may be required by the district court in the exercise of its discretion is a payment which is fair in the light of the actual financial situation of the particular pro se litigant. See, in this connection, Judge Bue’s excellent discussion of this subject in Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977). In the present case, the order of the court, if carried out, would have left the plaintiff with a balance of only 76 cents. True, he had the possibility of prison earnings, but these were modest indeed and problematical. We conclude that the order of the court requiring the plaintiff to pay $4.00 of his $4.76 cash assets was an abuse of discretion and that in for-ma pauperis status should have been granted without any required prepayment of fees and costs.
The order of the district court will be reversed and the cause, remanded with directions to reinstate the complaint and to grant plaintiff’s request for leave to proceed without prepayment of fees and costs.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Louie King FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 17744.
United States Court oí Appeals Ninth Circuit.
June 27, 1962.
Sullivan, Redman & Winsor, and John J. Sullivan, Seattle, Wash., for appellant.
Brockman Adams, U. S. Atty., and Phillip DeTurk, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before POPE, HAMLEY and BROWNING, Circuit Judges.
POPE, Circuit Judge.
This case was first instituted by the filing of a complaint in the District Court of the United States for the Western District of Washington, by Fong, as plaintiff, against John P. Boyd, District Director of Immigration and Naturalization Service of the United States Department of Justice, as defendant. The complaint sought judicial review by way of a declaratory judgment of a deportation order of the Immigration and Naturalization Service through its special inquiry officer, which found and determined that the plaintiff Fong was, as a deportable alien, not eligible to apply for or obtain suspension of deportation under Sec. 244(a) of the Immigration and Nationality Act of 1952, (8 U.S.C.A. § 1254(a)).
After answer had been filed in the district court, the litigation there was carried through a pretrial hearing and entry of a pretrial order in which all the facts of the case were stipulated by the parties. Thereafter, and before any further hearing was had in the district court, the Act of September 26, 1961, (Public Law 87-301), 75 Stat. 650 to 657, became effective as of October 26, 1961, 18 U.S.C.A. § 1101 et seq. Section 5 of that Act provided, with certain exceptions not here relevant, that: “The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings * * It also provided: “Any judicial proceeding to review an order of deportation which is pending unheard in any district court of the United States on the effective date of this section (other than a habeas corpus or criminal proceeding in which the validity of the deportation order has been challenged) shall be transferred for determination in accordance with this section to the court of appeals having jurisdiction to entertain a petition for review under this section.” 8 U.S. C.A. § 1105a. The case was transferred by order of the district court to this court in accordance with the statutory provision quoted.
The record shows that prior to the filing of his complaint in the district court, (the complaint is now treated as a petition for review as provided by the Act of December 29, 1950, (5 U.S.C.A. § 1031 et seq.), petitioner had exhausted all of his administrative remedies.
Petitioner made timely application for suspension of deportation and at a time when no final order of deportation had been served on him. In affirming the order of the special inquiry officer, the Board of Immigration Appeals, to whom the record had been certified, stated the admitted facts respecting the petitioner, as follows: “The pertinent case history will be reviewed briefly. The undisputed facts are that respondent, a native Chinese citizen, was brought to the United States in October 1943 from Trinidad, British West Indies, where he had been taken about 1942, following rescue after the sinking of a British tanker on which he was working as a seaman in the Atlantic. He began sailing in 1941 and the purpose of his admission to the United States in 1943 was to allow him to ship out as a seaman or otherwise give service in the war effort. He registered for military service, was medically examined and classified IV(F). He has remained in the United States continuously and has worked intermittently. He failed to furnish notification of address or other information in February 1953 as required by Section 265 of the Immigration and Nationality Act [8 U.S.C.A. § 1305]. He is unmarried and has no dependent ties here. He has no criminal record. Good moral character and physical presence in the United States for a continuous period of ten years are established. The hardship factor is present. No evidence has been presented to indicate that the alien has any connection with subversive groups. He has lived here 17 years. * * * Although the evidence shows that after admission as a nonimmigrant respondent failed to comply with the terms and conditions of his admission; and/or as a nonimmigrant he remained longer than permitted; and that he acquired a deportable status about 1944 (8 U.S.C. 203, 214 and 215, Act of 1924 ), no charge has been urged under current law based on that violation of the immigration laws (8 U.S.C. 1251 (a) (2)). Respondent has been found deportable solely for failure to furnish notification of address or other information in 1953 as required by Section 265 of the Immigration and Nationality Act. This ground for deportation was lodged in the hearing and is assigned under Section 241(a) (5) of the Immigration and Nationality Act.”
The issues considered by the administrative officers and decided against the petitioner were stated as follows: “The controversial issue, as clearly stated by the special inquiry officer and counsel, is a question of law pertaining to one of the statutory requirements which the alien has not met under Section 244(a) (5) of the Immigration and Nationality Act. This question arises because the alien acquired a deportable status on two occasions, namely in 1944 and 1953, respectively. The question is whether the date of the first deportable status acquired by the respondent in 1944, which constitutes a ground for deportation (other than one specified in Section 244 (a) (5)), may be a basis for computing continuous residence in the United States and thus satisfy the resident provision of the last mentioned section of law, which requires that an alien must have been physically present in the United States for a continuous period of ‘not less than ten years immediately following the commission of an act or the assumption of a status, constituting a ground for deportation.’ The special inquiry officer has ruled in the negative.”
The applicable statute, upon whose construction the outcome of this case' depends, is Sec. 244(a) of the Immigration and Nationality Act of 1952, (Title 8 U.S.C.A. § 1254(a)), which undertakes to describe and define the persons to whom suspension of deportation may be granted by the Attorney General. That subdivision contains five numbered paragraphs, the fifth of which has significance here. It is the only paragraph under which petitioner could possibly apply for suspension of deportation. Paragraph (5), with the introductory paragraph of the section, reads as follows: “§ 1254. (a). As hereinafter described in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who — ■ * * * (5) is deportable under paragraphs (4) — (7), (11), (12), (14)-(17), or (18) of section 1251(a) of this title for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States within two years prior to, or at any time after June 27, 1952, is deportable under paragraph (2) of section 1251(a) of this title as a person who has remained longer in the United States than the period for which he was admitted; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; has not been served with a final order of deportation issued pursuant to this chapter in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence.”
The report of the special inquiry officer noted that petitioner became deportable at various times: — “he became deport-able shortly after entry by accepting employment inconsistent with non-immigrant status or by remaining longer than the period for which he was admitted, which would fix his deportable status as commencing sometime early in 1944.” “He also acquired a deportable status by virtue of the charge upon which deporta-bility is based, failure to report his address annually to the Attorney General.” His first violation under this provision occurred about February 1, 1953.
It is also to be noted that the first ground for deportability would be the ground mentioned in paragraph 2 of Sec. 1251(a) of Title 8, namely, “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — * * * (2)'entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States.” It is not one of the paragraphs listed in the first line of paragraph (5) quoted above. However, failure to register is described in paragraph 5 of Sec. 1251(a), which is one of the paragraphs mentioned in paragraph (5) which we have quoted above as a part of Sec. 1254.
The case is one of first impression and neither party has been able to cite cases or decisions in point. In support of the finding of the administi'ative officers, counsel for the respondent Immigration and Naturalization Service argues that it was necessary for this petitioner to prove that “he has had physical presence in the United States for a continuous period of ten years after he has last become deportable.” (Emphasis ours.)
The main trouble with that contention is that the statute here in question does not so state. On the other hand, as petitioner shows, the quoted paragraph (5), in referring to physical presence in the United States for a continuous period of not less than ten years, states “immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation.” (Emphasis ours) If it was the intent to give the paragraph the meaning which the special inquiry officer has given it, it would have been a simple matter to have made this language read: “Immediately following the commission of the act, or the assumption of the status, constituting the ground upon which deportation is ordered. * * * ”
We think that at the very least it must be said that the manner in which this paragraph is worded left it open to two possible constructions. If that is the case, then the principle which should be applied here is that stated in Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 98 L.Ed. 1009, as follows: “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile’, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, [68 S.Ct. 374, 92 L.Ed. 433] and should be strictly construed.”
Furthermore, to give the language of this section the meaning which respondent has applied in ruling petitioner ineligible for suspension of deportation would make the statutory language appear irrational and lacking in ordinary common sense. The conduct of this petitioner which forms the basis of the order for his deportation is innocuous and minor when compared with the sort of conduct which would constitute the basis for deportation under the various paragraphs listed in the first line of the quoted paragraph (5). Included there are persons convicted of crimes involving moral turpitude, anarchists, members of the Communist party, or persons who advocate totalitarian dictatorship, or the overthrow by force, violence or other unconstitutional means of the Government of the United States; narcotics addicts, persons convicted of violation of laws relating to illicit traffic in narcotic drugs; persons convicted of possession of automatic weapons or sawed-off shotguns. Any of these persons, ten years after the cause of their deportability, would be eligible for suspension of deportation. It does indeed appear to be irrational so to construe this paragraph as to bar from suspension of deportation this petitioner whose record shows years of good behavior, no moral turpitude whatever, and only a minor infraction of law through a failure to register.
It seems difficult to square with the statute as a whole any thought that Congress, through the use of ambiguous or vague language in the section here involved, intended to limit its declared purpose of granting the Attorney General broad powers to avoid the hardships of deportation through the use of the authority to suspend deportation. It should be remembered that the use of that power is always subject to the strict limitations of Sec. 1254 which requires Congressional approval of the Attorney General’s extension of clemency. As stated in Addison v. Holly Hill Fruit Products, 322 U.S. 607, 617, 64 S.Ct. 1215, 88 L.Ed. 1488: “If legislative policy is couched in vague language, easily susceptible of one meaning as well as another in the common speech of men, we should not stifle a policy by a pedantic or grudging process of construction.”
As in the case of Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17, we feel that “the hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.”
The statutory provisions relating to suspension of deportation are designed to ameliorate the ordinary drastic consequences of an order of deportation. As stated by Mr. Justice Douglas, in speaking for the Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433: “We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17]. It is a forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”
Accordingly we hold that those portions of the orders of the respondent holding petitioner not eligible for suspension of deportation are invalid and they are set aside. 5 U.S.C.A. § 1032. The cause is remanded to the respondent Immigration and Naturalization Service with directions to modify its orders in conformity with this opinion. 5 U.S.C.A. § 1009(e).
The title of this proceeding is ordered amended as follows: LOUIE KING FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
. In the matter before the special hearing officer Fong was held (a) to be deport-able; and (b) ineligible for suspension of deportation. The order as to deportation is not in issue here; the only questions presented relate to the order as to eligibility for suspension of deportation. .
. In his complaint in the district court Fong properly named the District Director of Immigration and Naturalization Service as defendant. The new statute, Public Law 87-301, supra, provides that “The action shall be brought against the Immigration and Naturalization Service, as respondent.” The petitioner’s briefs in this court continue to describe John P. Boyd, District Director, as defendant, and the brief on behalf of the Immigration and Naturalization Service describes the United States as defendant. We treat Fong as petitioner here, and the Immigration and Naturalization Service as respondent, and the title-of the proceedings in this court will be ordered amended accordingly.
Now 8 U.S.C.A. §§ 1101(a) (15) (A-G), (27) (A-C, F), 1251(a) (1, 2, 9), (e), 1252, 1102, 1184.
. Tlie other four paragraphs describe various classes of deportable persons but in each case the language of those paragraphs expressly excludes any person in the situation of this petitioner. Thus paragraph 1 refers to an alien who “applies to the Attorney General within five years after the effective date of this chapter for suspension of deportation”; paragraphs 2, 3 and 4, are expressly limited to aliens who “last entered the United States within two years prior to, or at any time after June 27, 1952”. Petitioner cannot qualify under any of those paragraphs because of the indicated time limitations.
. “Certainly, so harsh a penalty as deportation is far out of proportion with the crime. * * * Such a penalty is not in keeping with the principles of our jurisprudence.” U.S.Code Congressional Service, 82nd Cong. 2d Sess., Vol. 2, p. 1753. (Statement of Congressman Celler appended to House Report.)
. Statement of House Mgrs. on Conference Report, U.S.Code Congressional Service, 82nd Cong., 2nd Sess. vol. 2, p. 1753: “Similarly, the conferees believe they have applied very broad standards of humanitarianism in composing the differences between both versions of this legislation as they appeared in the sections governing the granting of suspension of deportation.”
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
SAN JOAQUIN BRICK CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 10007.
Circuit Court of Appeals, Ninth Circuit
Aug. 8, 1942.
Lafayette J. Smallpage, of Stockton, Cal., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Newton K. Fox, and Fred E. Youngman, Sp. Assts. to the Atty. Gen., for respondent.
Before WILBUR, STEPHENS, and HEALY, Circuit Judges.
STEPHENS, Circuit Judge.
Petition to review a decision of the Board of Tax Appeals which affirmed a determination of the Commissioner of Internal Revenue that the petitioner-taxpayer is not entitled to certain claimed deductions in computing its 1934 income taxes.
The matter was submitted to the Board of Tax Appeals upon a stipulation of facts, neither the petitioner nor the Commissioner introducing any other evidence.
The stipulated facts are, briefly, as follows :
The petitioner-taxpayer is a California corporation with its principal office at Stockton, California, and is engaged in the manufacture and sale of building materials. It keeps its books and prepared its income tax returns on an accrual basis. In 1934 and 1935, all shares of its capital stock were owned by I. R. Stein, who has since died.
Stockton Medico-Dental' Building, Inc. [herein called Medico-Dental] is a Delaware corporation organized in 1925. It erected a twelve-story office building at Stockton and on June 15, 1926, issued $400,000 six and one-half percent first mortgage bonds and $110,000 seven percent second mortgage bonds, maturing serially up to June 15, 1942, secured by deeds of trust on the building.
Between 1926 and 1934, taxpayer acquired some of each class of these bonds. $30,000 second mortgage bonds were received by it for construction materials of that value supplied by it to Medico-Dental in the construction of the building. $10,-000 of these second mortgage bonds were sold by taxpayer in 1927.
As of January 1, 1934, taxpayer owned second mortgage bonds of Medico-Dental which it had acquired on the dates, in the quantities and at the costs shown as follows [the $20,000 total of bonds shown to have been acquired in the years 1926 and 1927 represent the remainder of the $30,000 bonds acquired for construction materials to which we have just referred] :
Date Acquired Face Value Cost.
Sept. 18, 1926 $12,000.00 $12,000.00
Dec. 21, 1926 1,000.00 1,000.00
Feb. 1, 1927 3.000. 00 3.000. 00
Mar. 12, 1927 4.000. 00 4.000. 00
Apr. 4, 1929 10,000.00 8.500.00
Apr. 8, 1929 2.000. 00 1.750.00
Apr. 11, 1929 8,000.00 6.490.00
Apr. 19, 1929 24.000. 00 18.500.00
Apr. 25, 1929 2,000.00 1.600.00
Apr. 29, 1929 1,000.00 825.00
May 1, 1929 4.000. 00 3.200.00
May 20, 1929 5.000. 00 4.625.00
Nov. 9, 1933 23.000. 00 2.300.00
Totals $99,000.00 $67,790.00
In 1929 Medico-Dental was in default on its obligations under the deeds of trust securing its first and second mortgage bonds. Thereupon Medico-Dental Investment Company, a California corporation [hereinafter referred to as Investment Co.] was organized on March 11, 1929, to acquire and operate the building. The Investment Company assumed the first and second mortgage bonds, then outstanding in the amounts of $392,500 and $110,000 respectively, in consideration of a transfer of Medico-Dental property to it. Investment Company issued 615 shares of stock of $50.00 par value, of which 600 were issued to taxpayer for $30,000.00.
In 1930 Investment Company defaulted in payment of interest on the second mortgage bonds, and in 1933 it defaulted in payment of interest and sinking fund obligations on the first mortgage bonds. The first mortgage bondholders thereupon formed protective committees which formulated a reorganization plan, and on January 29, 1934, made an agreement with Investment Company and Medico-Dental to carry out the plan. This plan was submitted on June 5, 1934, to holders of first mortgage bonds.
The plan provided that if all first mortgage bonds should be deposited with a reorganization committee before August 1, 1934, the trust indenture of June 15, 1926, would be amended so that the six and one-half percent • first mortgage gold bonds would have the effect of “new bonds” and be returned to the parties entitled thereto and the plan of reorganization consummated. If all first mortgage bonds should not be deposited, Investment Company or a new company would acquire the mortgaged building at a trustee’s sale under foreclosure and issue bonds to each depositor in the same principal amount as the bonds deposited. Such new bonds, dated June 15, 1933, and maturing June 15, 1947, would bear four percent interest, and (the company’s earnings permitting) additional interest up to one percent, and coupons for “deferred interest” aggregating three and one-quarter percent of principal and payable in four semi-annual installments ending December 15, 1935, from the promissory note to be given by taxpayer to the new company.
To secure the new bonds, a deed of trust would be placed upon the building, requiring that the new company’s net income be paid to a trustee for application to the bonds, and imposing other restrictions safeguarding the loan. The new company’s capital stock would consist of 615 shares of which 600 would be placed in trust as additional security for the bonds, and after fulfillment of obligations under them, would be transferred to taxpayer. Taxpayer was also to pay Investment Company’s accounts payable incurred prior to June 15, 1933, and acquire its accounts receivable as of that date, and pay the expenses of the reorganization plan, including the amount necessary for distribution to the non-depositing stockholders.
In considering this plan of reorganization it should be noted that it contemplated the possibility of having deposited 100% of the outstanding first mortgage bonds, in which event [quoting from the plan] “the Committee can accomplish the foregoing plan of reorganization without the trustee’s sale and by merely amending the deed of trust securing said bonds and having the Trustee make' appropriate notation on the bonds”. Of course if this had been accomplished, the proposed modification of the interest rate and maturity dates on the first mortgage bonds would have been effected without any change in equity ownership or revision of debts junior to the first mortgage bonds.
The full 100% of the outstanding first mortgage bonds were not deposited, and in accordance with the plan the bondholders’ committee on November 16, 1934, caused Stockton Medico-Dental Building Company [hereinafter referred to as the “New Company”] to be organized as a corporation under the laws of California.
The Committee then transferred to the New Company in trust all the bonds which had been pledged to them [$336,700 out of a then outstanding issue of $351,000].
On November 20, 1934, the trustee under the trust indenture securing the first mortgage bonds took possession of the property pledged under the trust indenture, and on December 14, 1934, sold all the assets at public sale to the highest bidder, which was the New Company. The New Company then issued first mortgage notes to the depositors in the full face amount of their deposited bonds, with extended maturity dates bearing interest at four percent guaranteed and one percent additional, if earned. The non-depositing holders of first mortgage bonds received 30 cents on the dollar face value of their bonds.
The accounts payable of Investment Company incurred prior to June 15, 1933, and which taxpayer had assumed under the plan of reorganization as above outlined, amounted to $19,959.60. They were all due to taxpayer itself for merchandise, advances and interest. There was also a note to a bank for $5,000 payable with accrued interest on May 28, 1933, on which taxpayer was guarantor. Taxpayer paid on account of its liability on this note the sum of $5,-010.32.
Investment Company’s accounts receivable on June 15, 1933, which taxpayer received, amounted to $15,134.15, due-from tenants of stores and offices in the building. Of this, it collected and paid to taxpayer $8,452.69 on November 9, 1934.
Taxpayer in 1934 charged off on account of this latter transaction the sum of $16,-517.23, computed as follows:
Accounts payable assumed $19,959.60 Note and interest paid 5,010.32
$24,969.92
Dess amount collected on accounts receivable 8,452.69
$16,517.23
Taxpayer claims that it is entitled to deductions in computing its 1934 income tax return in the following amounts :
(1) The cost price of the second mortgage bonds of Investment Company totaling $67,790.00.
(2) The cost price of shares of stock of investment company totaling $30,000.00.
(3) The $16,517.23 difference between the accounts payable and amounts received on accounts receivable as above set forth.
In connection with this latter claimed deduction the Board determined that only $9,835.77 was deductible. The $9,835.77 figure was arrived at as follows:
Accounts payable assumed $19,959.60
Note and interest paid 5,010.32
$24,969.92
Less accounts receivable 15,134.15
$ 9,835.77
For convenience we shall consider the three claimed deductions separately. We turn first to item (2), the $30,000 expended for stock of Investment Company.
The Investment Company Stock.
The Board found as a fact that this stock became worthless before 1934, the year in which the taxpayer claimed his deduction. At the outset we are faced with the Commissioner’s argument that this finding is binding on us if supported by evidence. Taxpayer, on the other hand, urges that since the case was submitted upon a stipulation of facts, “this Court has the power and the duty to examine those facts for the purpose of reviewing the reasonableness of the Board’s conclusion”. The point seems to be that the Board’s conclusions from the stipulated facts are either mixed questions of law and fact or conclusions of law, which are subject to our independent judicial review. Commissioner v. Boeing, 9 Cir., 106 F.2d 305, 309.
In the Boeing case, supra, we analyzed recent cases decided by the Supreme Court on the power of this Court to review decisions of the Board of Tax Appeals. On tiie basis of Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343, and Helvering v. Tex-Penn Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755, we held that in the case then under consideration the ultimate findings of the Board were “conclusions of law, or mixed questions of law and fact within the meaning of the Supreme Court rulings and as such are subject to independent judicial review by this court.” [106 F.2d 309], The ultimate finding of the Board with which we were there concerned was as to whether the taxpayer was engaged in a “trade or business” which is entirely different from the finding with which we are concerned in the instant case, namely, as to the value of the stock in question prior to the year 1934. The question as to the year in which stock becomes worthless would seem to be purely a question of fact, and if the stipulated facts support the Board’s finding that it became worthless prior to the year 1934, it is our opinion that such finding is binding upon us.
But aside from all of that, the argument of both parties to this appeal on the question of the conclusiveness of the Board’s finding discloses a misunderstanding of the expressions often made by the Courts that the Commissioner’s determination is supported by a presumption of correctness and that the taxpayer has the burden of showing it to be wrong. See, for instance, Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212.
In Perry v. Commissioner, 9 Cir., 120 F.2d 123, 124, this Court undertook to explain such expressions by saying, “This finding [the determination of the Commissioner] is presumptively correct, that is, until the taxpayer proceeds with competent and relevant evidence to support his position, the determination of the Commissioner stands: When such evidence has been adduced the issue depends wholly upon the evidence so adduced and the evidence to be adduced by the Commissioner. The Commissioner cannot rely upon his determination as evidence of its correctness either directly or as affecting the burden of proof.”
It has often been pointed out that in claiming tax deductions the taxpayer must show clearly that he comes within the statute allowing such deductions. But once he presents competent and relevant evidence on every necessary element, the presumption of correctness of the Commissioner’s determination is no longer existent and the outcome of the case depends upon the determination of the trial body after the consideration of the evidence brought before it by both sides. When the evidence on both sides has been adduced, and the Board makes its findings of fact, then the sole question presented to the Court, so far as the facts are concerned, is whether or not the Board’s findings are supported by the evidence.
If the taxpayer fails to present substantial evidence on every point necessary to entitle him to the deductions claimed, this Court upon petition for review necessarily will hold against their allowance. In doing so we are not considering proof nor are we weighing the evidence.
With these principles in mind we turn to the claims of the taxpayer in the instant case.
The law is clear that as to claimed deductions for worthless stock the income tax law contemplates that the deduction must be taken in the year in which the loss is sustained by reason of the stock actually becoming worthless. The statute does not make the loss deduction dependent upon the time of ascertainment but rather upon the time when- the loss is truly sustained. See Bartlett v. Commissioner, 4 Cir., 114 F.2d 634, 638, 639, and cases therein cited.
It is conceded by all that the stock of Investment Company was worthless at least after the sale of the property under foreclosure in 1934. But that is not the question. The problem for us to decide is— did taxpayer represent competent evidence tending to prove that the stock actually became worthless in 1934? If it did present evidence on this point, then we must consider whether or not evidence was introduced to support the Board’s conclusion that the stock became worthless prior to the beginning of the year 1934.
This leads us to the question: What is necessary for a taxpayer to prove in order to establish the fact that stock which he holds became worthless in the year in which he is claiming a deduction?
It would appear, as pointed out by the Court in Dunbar v. Commissioner, 7 Cir., 119 F.2d 367, 369, 135 A.L.R. 1424, that “As a part of his burden in demonstrating that it became worthless in [the year of the claimed deduction] he must of necessity-show that it had some intrinsic or potential value at the close of [the preceding year].”
The stipulation of facts upon which this case was presented to the Board of Tax Appeals is entirely silent on this matter. All that we are told is that in 1929 the Investment Company was organized and that there were transferred to it the properties of Medico-Dental. The value of these properties is not shown. No balance sheets of any kind are in the record. We know that the properties transferred to the Investment Company were mortgaged to the extent of some $500,000.00, being the total of the first and second mortgage bonds, and that there was a default on the second mortgage bonds in 1930 and on the first mortgage bonds in 1933, after which protective committees were organized to work out a plan of reorganization.
Certainly this all falls far short of evidence to show that the stock of Investment Company which the taxpayer claims to have become worthless in 1934 had any intrinsic or potential value at the close of 1933.
In this situation it is our duty to hold that there is no error in the Board’s determination that the taxpayer is not entitled to claim a deduction for the worthlessness of the Investment Company stock in 1934.
The Second Mortgage Bonds of Investment Company.
As to these bonds we have a different situation. Under Regulations 86 of the Treasury Department [Art. 23 (k) 4] it is provided that “Bonds, if ascertained to be worthless, may be treated as bad debts to the amount actually paid for them * * * ”,
And, as pointed out by the decision in Bartlett v. Commissioner, supra [114 F.2d 638], “the law applicable to deductions for worthless stock stands out in clear relief when it is viewed against the background of the law pertaining to deductions for bad debts”.
Under the 1934 Revenue Act, c. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Code § 23, the bad debt deduction is set forth as follows: “Debts ascertained to be worthless and charged off within the taxable year * * *
It is stipulated by the parties that the taxpayer charged off the purchase price of the bonds in the year 1934, but the dispute between the parties arises out of the question of whether they were “ascertained to be worthless” during that year.
We therefore examine the stipulation of facts to determine whether or not it can properly be said that taxpayer presented evidence on every essential element to the proving of its case.
Unlike the situation with respect to claiming a deduction for worthless stock, where we have heretofore held that a part of the taxpayer’s case is to show that the stock had some intrinsic or potential value at the close of the preceding year, in the case of bad debts the actual worthlessness of the debt prior to the tax year in which the deduction is claimed is immaterial so long as the debt was “not ascertained to be worthless” by taxpayer prior to that time.
The taxpayer must present evidence, then, to show: (1) That the debt actually was uncollectible during the year in which he claims the deduction [this is clear in the instant case from the stipulated fact that the property was lost by foreclosure proceedings in 1934] and (2) that he actually “ascertained” that fact for the first time during the tax year in question.
On this second point we have the following stipulated facts: Taxpayer was fully aware of the reorganization proceedings and the foreclosure of the property [this shows that the “ascertainment” was at least as early as 1934 when it claims the deduction] ; that until August 1, 1934 [the deadline for obtaining a deposit of 100% of the first mortgage bonds] the reorganization committee hoped to accomplish the plan of reorganization without a trustee’s sale, thereby, as we have heretofore pointed out, effecting the reorganization without any change in equity ownership or revision of debts junior to the first mortgage bonds; that as late as November, 1933, taxpayer purchased and paid $2,300.00 for $23,000.00 face value of the second mortgage bonds.
It is our opinion and we therefore hold that there was sufficient evidence from which the Board could have found that the taxpayer “ascertained” the bonds to be worthless in 1934.
In this situation, then, the question for our determination is whether there was evidence on behalf of the Commissioner to sustain the Board’s finding that the bonds were ascertained to be worthless prior to 1934.
The Board’s finding in this respect is that the bonds “were in fact worthless before 1934, and the petitioner must be charged with having then ascertained it”.
In order to support this finding, it is apparent that there must be evidence (1) that the bonds were in fact worthless before 1934 and (2) that the facts were such that taxpayer is charged with having ascertained the worthlessness of the bonds prior to that year.
There is some conflict in the cases as to just when a taxpayer is to be charged with ascertainment of the worthlessness of a debt. It is our opinion and we hold that the case of Rosenthal v. Helvering, 2 Cir., 124 F.2d 474, 476, correctly sets forth the true rule, as follows:
“ ‘Losses’ must be deducted in the year in which they are ‘sustained’ and if the taxpayer fails to learn of them in time, he loses the privilege; debts, on the other hand, must be deducted in the year in which the taxpayer ‘ascertains’ them to be ‘worthless,’ and nobody understands that this imposes upon him the absolute risk of selecting the year when they actually became so. * * * However, beginning with Avery v. Commissioner, 5 Cir., 22 F.2d 6, 55 A.L.R. 1277, courts have at times charged taxpayers with the duty of selecting that year in which a prudent person with the same information would have concluded that the debt was uncollectible. * * * In Curry v. Commissioner, 2 Cir., 117 F.2d 307, 309, 310, we held, however, that the ‘subjective test’ as we called it, was the right one; that is, that the proper year was that in which the taxpayer did ‘ascertain’ the fact no matter how much earlier a reasonably prudent person would have done so. * * *
“The taxpayer’s failure to ‘ascertain’ the uncollectibility of the debt as early as a prudent person would have done so, must not be actuated by a desire to postpone the deduction to a later year; he may as little choose the year of greatest advantage to himself by deliberately refusing to follow up evidence which will lead to the facts as by refusing to make use of facts themselves. That would be indeed what the Board here called ‘shutting one’s eyes to the facts.’ But it is one thing not to permit a taxpayer to check an inquiry which he would otherwise have made, and another to impose upon him the duty of general vigilance j}! ÍÍC »
In other words, the taxpayer is under no’ duty of general vigilance to ascertain the fact of worthlessness of a debt. However, if the taxpayer does know the facts he cannot “shut his eyes” to those facts. The taxpayer’s failure to “ascertain” the uncollectibility of the debt as early as a prudent person would have done so “must not be actuated by a desire to postpone the deduction to a later year”. He cannot deliberately refuse to follow up evidence which will lead to the facts, nor can he refuse to make use of the facts themselves.
In the instant case, the taxpayer concededly knew all the facts. It was the principal stockholder and took an active part in the affairs of the company. It would seem, therefore, that if the evidence shows that the bonds were in fact worthless prior to 1934, as the Board found, it would be our duty to hold that that fact would be evidence that the taxpayer actually “ascertained” their worthlessness at that time.
At this point it is well to again point out that the Board did not find that taxpayer actually “ascertained” the worthlessness of the bonds prior to 1934, but that it was chargeable with notice of their worthlessness. It is our opinion that in the event we should find that there is evidence from which the Board could properly conclude that the taxpayer did actually “ascertain” the fact of worthlessness prior to 1934, then it would be our duty to remand the cause to the Board to find upon the point. On the other hand, if there is no evidence from which the Board could properly find an actual “ascertainment” of worthlessness by taxpayer, i. e., if there is no evidence to support a finding that a reasonably prudent person with knowledge of the facts would have “ascertained” that the bonds were worthless, then it is our duty to reverse the cause in favor of the taxpayer. And as we have just said, in the particular circumstances of this case the question turns on whether or not there is evidence to support the finding of the actual worthlessness of the bonds prior to 1934. .
In urging that the Board’s finding is supported by the evidence, the Commissioner relies upon the stipulated fact that there was no interest paid on the second mortgage bonds after 1930 and that there was a default in 1933 on the interest and sinking fund obligations on the first mortgage bonds. But this is not evidence that the bonds themselves were entirely worthless. The Commissioner also relies on the fact that in 1933 bondholders’ protective committees were organized and that these committees thereafter adopted and filed a plan of reorganization, not making therein [quoting from the Commissioner’s brief] “any provision for holders of second mortgage bonds”. There are two answers to1 this point made by the Commissioner. The first is that as we have pointed out above, under the plan it was contemplated that the reorganization might be accomplished without the necessity of foreclosure, in which event the second mortgage bonds would have remained legal evidences of indebtedness secured by the junior mortgage on the building. The second answer is that the evidence does not disclose that the reorganization plan was worked out in 1933 as is assumed by the Commissioner. The stipulated facts show that the protective committees were organized in 1933, and that these committees entered into an agreement on January 29, 1934 to carry out the plan which they had formulated, and which is set forth in the agreement. On such evidence we cannot sustain a finding that the details of the plan were worked out in the year 1933.
The Commissioner also urges that the finding as to the worthlessness of the bonds in 1933 is supported by the fact that in 1934 the property was foreclosed upon and bid in at public sale for $104,000, which provided for the dissenting first mortgage bondholders only 30^ on the dollar. We do not agree that evidence of a sale on foreclosure in December, 1934, at a figure much below the amount of outstanding first mortgage bonds, furnishes support for a finding that as of the end of 1933 there was no equity or value behind the second mortgage bonds.
In dealing with the question of the deduction claimed on account of the common stock of the Investment Company we pointed out that there was no evidence as to the worth of the company at the close of the year 1933. There is nothing in the record to indicate the value of the real property on which the first and second mortgage bonds were a lien. In other words, there is no evidence to support a finding that the second mortgage bonds were actually worthless prior to the time of the foreclosure proceedings in December, 1934, or at least prior to the time when it became apparent that the proposed plan of reorganization by obtaining a deposit of 100% of the outstanding first mortgage bonds would not be carried through. We therefore hold for the taxpayer on this point.
The $16,517.23 Deduction.
As has heretofore been recited, under the reorganization proceedings taxpayer assumed the Investment Company’s accounts payable incurred prior to June 15th, 1933, and received the accounts receivable of said company as of that date. In making its income tax return for the year in question, taxpayer claimed a deduction for the difference between the accounts payable and the amount which it had actually received from the accounts receivable, while the Board allowed a deduction of only the difference between the accounts payable and the gross accounts receivable. In arriving at this -conclusion the Board in effect held that taxpayer was entitled to the deduction for the amounts which it assumed under the reorganization proceedings, but that there must be an offset for income received by it in the same transaction. We are not concerned in this appeal with the propriety of the Board’s holding that the deduction was proper, but only with the holding that taxpayer is chargeable with income in the gross amount of the accounts receivable.
In considering this question it is important to keep in mind that taxpayer kept its books and prepared its income tax returns on an accrual basis, and it is therefore clear that the Board was correct in charging taxpayer with income received by virtue of the assignment to it of the Investment Company’s accounts receivable.
But taxpayer urges that the accounts receivable over and above the $8,-452.69 collected thereon were valueless, and were charged off by it during the tax year. But a charge-off is not enough to entitle a taxpayer to a deduction for worthless debts. It must be remembered that the debts here claimed as worthless were not those of the Investment Company, but rather of debtors of that company. There was no evidence presented as to the financial responsibility of these debtors or their ability to pay. In this state of the record it is our duty to hold that there was no error in the Board’s refusal to allow the deduction.
This holding is not a holding [as is urged by taxpayer] that the accounts receivable were accepted by taxpayer as a payment pro tanto on the indebtedness which it assumed. Taxpayer, being on an accrual basis, is chargeable with income received by virtue of the assignment to it of the accounts receivable. In the absence of a showing that the accounts receivable were “ascertained to be worthless” during the tax year, no deduction is allowable.
The decision of the Board in refusing to allow a deduction of the cost price of the second mortgage bonds of Investment Company totaling $67,790.00 is reversed. In. all other respects, the decision is affirmed.
The plan recites that this note is to be given by I. R. Stein, who, as we have stated, was taxpayer’s sole stockholder. It is stipulated that all obligations entered into and all action taken by Stein under said agreement were entered into and taken by him as nominee of taxpayer.
There appears in one of the exhibits on file a “Registration Statement” filed by the Investment Company with the Federal Trade Commission in connection with the reorganization some time subsequent to May 31, 1934, in which the statement is made “If the securities for which this Registration Statement is filed are ultimately issued, the Second Mortgage 7% Notes of Stockton Medico-Dental Building, Inc. will be retired either by the voluntary surrender of said notes by the holders thereof for cancellation or by the foreclosure * * * of the deed of trust securing the First Mortgage Gold Bonds”. This is the only place in the record where it is indicated that it might have been a part of the plan to retire the Second Mortgage Bonds by voluntary surrender, and this statement was apparently made by the Investment Company some four or five months after the plan was formulated. The plan as outlined in the stipulation of facts, and in the agreement which also outlines the plan both show that if 100% of the first mortgage bonds had been deposited, the reorganization would have been accomplished by merely amending the deed of trust securing the first mortgage bonds and making an appropriate notation on the bonds. It should be kept in mind that the agreement was arrived at by a committee representing only the first mortgage bondholders. This committee could not make any agreement that would wipe out the rights of the holders of the second mortgage bonds without their consent. There is nothing in the record to indicate that such consent was given by the holders of second mortgage bonds.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. John CAPSOTA, Appellant.
No. 435, Docket 25609.
United States Court of Appeals Second Circuit.
Argued April 22, 1964.
Decided April 23, 1964.
Edward Q. Carr, Jr., New York City (Anthony F. Marra, New York City, on the brief), for appellant.
Charles J. Fanning, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, on the brief; Charles A. Stillman, Asst. U. S. Atty., of counsel), for appellee.
Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.
PER CURIAM.
Appellant, by his application for a writ of error coram nobis, seeks to vacate two judgments of conviction in the United States District Court for the Southern District of New York on August 10, 1937, and April 30, 1941. He is presently incarcerated in the New York State Penitentiary, Dannemora, New York as a multiple offender. His original application was denied without a hearing. On appeal (2 Cir., 260 F.2d 566) we ordered a hearing in accordance with United States ex rel. Farnsworth v. Murphy, 358 U.S. 48, 79 S.Ct. 76, 3 L.Ed.2d 46 (1958), vacating and remanding 254 F.2d 438 (2 Cir.). Pursuant thereto Judge Edelstein held a full hearing and decided that the Government’s testimony was sufficient to meet the requirements of Farnsworth. We have examined the record before us and find that the weight of the evidence supports his finding that appellant intelligently waived his right to counsel before the 1937 plea of guilty and was represented by counsel at the 1941 conviction. The judgment is, therefore,
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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Annabelle LIPSETT, Plaintiff, Appellee, v. Gumersindo BLANCO, et al., Defendants, Appellants.
No. 91-2152.
United States Court of Appeals, First Circuit.
Heard April 7, 1992.
Decided Sept. 23, 1992.
James D. Noel, III, with whom Ledesma, Palou & Miranda, Hato Rey, P.R., were on brief, for defendants, appellants.
Judith Berkan, Santurce, P.R., with whom Charles S. Hey Maestre, Rio Piedras, P.R., and Janice M. Gutierrez Lacourt, Hato Rey, P.R., were on brief, for plaintiff, appellee.
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOYLE, District Judge.
Chief Judge, United States District Court for the District of Rhode Island, sitting by designation.
SELYA, Circuit Judge.
In what promises to be the last trek of a long safari of a case, we are asked to ascertain whether the district court abused its discretion in awarding $678,425.25 to the prevailing plaintiff under the Fees Act, 42 U.S.C. § 1988 (1988). Finding that the bestowal of attorneys’ fees was overgenerous in certain respects, we reduce the award.
1. OVERVIEW
Because the merits of this case are no longer in issue and appellants concede that the plaintiff prevailed, we need not rehearse the facts. Rather, we offer an overview of what has transpired to date, referring the reader who may hunger for exegetic detail to the myriad of published opinions chronicling the snail’s-pace progress of the underlying litigation.
Plaintiff-appellee Annabelle Lipsett entered the surgical residency program (Program) at the University of Puerto Rico School of Medicine (UPR) in July, 1980. She successfully completed her first year. Lipsett’s second and third years in the Program were rife with controversy, culminating in the involuntary termination of her residency, effective June 30, 1983.
Lipsett promptly instituted a civil rights action in federal district court. She alleged, inter alia, gender-based discrimination and sexual harassment. The initial roster of defendants included the present appellants, Gumersindo Blanco, Jose R. Gonzalez-Inclan, and Pedro Juan Santiago-Borrero. Several other persons and institutions were sued along the way, but over time, the number of defendants dwindled.
When Lipsett’s case was finally tried, the jury found appellants liable for what had befallen to the tune of $525,000 in damages. The district court rejected appellants’ post-trial motions for judgment n.o.v. or a new trial and, at the same time, denied appellee’s post-trial motion for equitable relief. See Lipsett v. UPR, 759 F.Supp. 40 (D.P.R.1991). The court subsequently awarded Lipsett attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Lipsett v. UPR, Civ. No. 83-1516 (D.P.R. Sept. 10, 1991) (Fees Op.). This appeal followed.
II. THE LEGAL LANDSCAPE
Ordinarily, the trial court’s starting point in fee-shifting cases is to calculate a lodestar; that is, to determine the base amount of the fee to which the prevailing party is entitled by multiplying the number of hours productively expended by counsel times a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case “and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.” Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984). The court then applies hourly rates to the constituent tasks, taking into account the “prevailing rates in the community for comparably qualified attorneys.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 19 (1st Cir.1988); see also Grendel’s Den, 749 F.2d at 955. Once established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances. See Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984).
On appeal, a fee award is reviewable only for mistake of law or abuse of discretion. See Foley v. City of Lowell, 948 F.2d 10, 18 (1st Cir.1991); Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984). The trial court’s discretion in respect to fee awards is extremely broad. See, e.g., Foley, 948 F.2d at 19; Metropolitan Dist. Comm’n, 847 F.2d at 14. Because this is so, and because determination of the extent of a reasonable fee necessarily involves a series of judgment calls, an appellate court is far more likely to defer to the trial court in reviewing fee computations than in many other situations. See Rogers v. Okin, 821 F.2d 22, 30 (1st Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988).
III. ANALYSIS
In this instance, the district court set the lodestar amount at $552,439 and then increased the amount to $678,425.25. Appellants say that this award reflects a cavalcade of errors. Their plaints fit into two categories. The first category consists of a series of challenges to the lodestar computation itself. The second category consists of allegations that enhancement was unjustified. We consider each category in turn.
A. Calculation of the Lodestar.
For purposes of discussion, we subdivide this cluster of grievances into four components.
1. Recordkeeping. Appellants single out certain time records and assail the manner in which Lipsett’s attorneys maintained them. They argue that these records failed to satisfy the relevant legal standard because, in some instances, the entries were not inscribed at the same time the work was performed and, in other instances, the entries were too general.
a.
It is important to note that the records at issue here are not subject to a single, uniform standard. Prior to 1985, we required that fee-seeking attorneys submit billing records sufficient to comprise a meaningful accounting of time expended. We warned that “bills which simply list a certain number of hours and lack such important specifics as dates and the nature of the work performed during the hour or hours in question should be refused.” King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978); accord Souza v. Southworth, 564 F.2d 609, 612 (1st Cir.1977). Under this standard, the records need not have been created contemporaneously with the lawyer’s performance of the recorded task. See Grendel’s Den, 749 F.2d at 951-52 (allowing recovery of fees under the King standard for hours expended before 1985 although the fee-seeking attorneys had not maintained contemporaneous time records).
On December 5, 1984, we announced a new, less forgiving standard: “Henceforth, in cases involving fee applications for services rendered after the date of this opinion, the absence of detailed contemporaneous time records, except in extraordinary circumstances, will call for a substantial reduction in any award or, in egregious cases, disallowance.” Id. at 952. Because the new rule was not meant to apply retroactively, Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560-61 (1st Cir.1986), the King standard applies to the pre-1985 billing records in this case and the Grendel’s Den standard applies to the post-1984 billing records.
b.
We find no abuse of discretion in the district court’s acceptance of the records presented under the King regime. These submissions adequately limn the different tasks performed, the nature of the work, the time consumed, and the dates when effort was expended. In sum, the pre-1985 time records, overall, fell sufficiently within the general parameters of the King standard that the district court, in the exercise of its informed discretion, could appropriately credit them. While many of the records are not models of clarity, the King regime did not require either exhaustive detail or infinite precision.
c.
The billing records submitted for tasks completed after 1984 are more of a mixed bag. Although most of those records pass muster under the heightened Grendel’s Den standard, appellants have directed our attention to several entries containing only gauzy generalities. These entries — which total 81.2 hours — are so nebulous that they fail to “allow[] the paying party to dispute the accuracy of the records as well as the reasonableness of the time spent.” Calhoun, 801 F.2d at 560. Accordingly, the entries should have been substantially discounted. See Grendel’s Den, 749 F.2d at 952.
2. Overstaffing. Appellants also claim that the plaintiff overstaffed the case. Specifically, appellants claim that Marilucy Gonzalez, an attorney, and Nelly Rivera Marrero, a paralegal, were excess baggage at trial. Lipsett defends the presence of multiple lawyers, plus a paralegal, asserting that a Iarger-than-average legal team was desirable due to the complex nature of the case and the reams of evidence which needed to be tracked and analyzed. After examining these conflicting claims, the court below found the challenged staffing practices were reasonable. Although we think the district judge was guilty of hyperbole in characterizing the populous staffing as “unavoidable,” we see no basis for disturbing his core finding that the staffing was “reasonable.”
As a general matter, “the time for two or three lawyers in a courtroom or conference, when one would do, ‘may obviously be discounted.’ ” Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (quoting King, 560 F.2d at 1027); accord Grendel’s Den, 749 F.2d at 953. Fee-shifting statutes are designed to “ensure effective access to the judicial process for persons with civil rights grievances,” Hensley, 461 U.S. at 429, 103 S.Ct. at 1937 (citation and internal quotation marks omitted), not to serve as full employment or continuing education programs for lawyers and paralegals. A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism. See United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 590 (D.R.I.1983) (suggesting that, in fee-shifting milieu, district courts “must zealously guard against any propensity to over-staff litigation”). In the last analysis, however, staffing issues are often best resolved by the trial court’s application of its intimate, first-hand knowledge of a particular case’s nuances and idiosyncracies. See, e.g., Wagenmann v. Adams, 829 F.2d 196, 224-25 (1st Cir.1987).
This case was bitterly contested. Appellants mounted a Stalingrad defense, resisting Lipsett at every turn and forcing her to win her hard-earned victory from rock to rock and from tree to tree. Since a litigant’s staffing needs often vary in direct proportion to the ferocity of her adversaries’ handling of the case, this factor weighs heavily in the balance. The record reflects that the court below carefully considered the parties’ importunings in light of the relevant policies and precedents, concluding that the staffing, though abundant, was “reasonable and necessary given the nature of the case.” Keeping in mind the complexity of the litigation, the considerable burdens it placed upon plaintiff’s counsel, the number of defendants, and the defense’s formidable staffing patterns, we decline to interfere with Judge Pieras’ assessment of the situation. See generally Metropolitan District Comm’n, 847 F.2d at 18 (refusing to second-guess interstitial determinations in the computation of a fee award “if the trial judge’s determinations seem plausible, given what has transpired in the litigation”); Wagenmann, 829 F.2d at 224 (hesitating, in the same context, to “nitpick what are essentially factual matters”); Johnson v. University College of the Univ. of Ala., 706 F.2d 1205, 1208 (11th Cir.) (“The retaining of multiple attorneys in a significant, lengthy employment discrimination case ... is understandable and not a ground for reducing the hours claimed.”), cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1988).
3. Clerical Tasks/Professional Rates. Appellants isolate certain hours which Lip-sett’s paralegals and lawyers billed at their customary rates, but which appellants claim involve clerical tasks. We bifurcate our analysis of this contention, treating paralegals and lawyers separately.
a.
We begin by considering 24.95 hours attributed to paralegals — hours that appellants urge were improperly factored into the fee award. The efficient use of paralegals is, by now, an accepted cost-saving device. Recognizing this reality, courts generally allow hours reasonably and productively expended by paralegals in civil rights litigation to be compensated at market rates when constructing fee awards. See Jacobs v. Mancuso, 825 F.2d 559, 563 & n. 6 (1st Cir.1987); United Nuclear, 564 F.Supp. at 589-90 & n. 6. The Supreme Court has given its blessing to such a practice, stating: “By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes.” Missouri v. Jenkins, 491 U.S. 274, 288, 109 S.Ct. 2463, 2471, 105 L.Ed.2d 229 (1989) (citation and internal quotation marks omitted).
In setting fees, the district court has broad discretion to determine “how much was done, who did it, and how effectively the result was accomplished.” Wagen-mann, 829 F.2d at 224. Having reviewed the disputed entries in light of this principle, we find that the paralegal fees were properly assessed. The tasks performed— filing motions, translating depositions, and the like — fell into the gray area between purely clerical tasks and those properly entrusted to a paralegal. It is precisely in such gray areas that the district court’s judgment carries the greatest weight. In this instance, moreover, the judge allowed the hours but pruned the reimbursement rate by forty percent (from $50/hr. to $30/ hr.). In the totality of the circumstances, we discern no abuse of discretion in respect to the court’s judicious handling of the contested hours.
b.
We turn next to 10.6 hours which appellants asseverate were improperly charged as attorneys’ time. We agree with appellants’ basic premise: clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer performs them. See Jenkins, 491 U.S. at 288 n. 10, 109 S.Ct. at 2471 n. 10; Action on Smoking & Health v. Civil Aeronautics Bd., 724 F.2d 211, 222 (D.C.Cir.1984).
We also agree with the conclusion that appellants draw from this premise. The disputed hours involve nothing more than translations of documents and court filings. The district court allowed this time to be compensated at a rate of $150/hr. That rate is incommensurate to the nature of the tasks. The hours should not be completely eliminated but should be compensated at a less extravagant rate. See Jenkins, 491 U.S. at 288 n. 10, 109 S.Ct. at 2471 n. 10.
4. Interrelated Claims. Appellants launch several broadsides directed at hours that were allegedly excessive because they were expended on claims that were ultimately unsuccessful. For example, appellants contend that, because the plaintiff did not prevail on her requests for reinstatement and other equitable relief, her attorneys’ fees should be decreased by twenty percent. Similarly, appellants ealumnize the district court’s allowance of time spent by plaintiff’s legal team in jousting with those defendants who managed to escape liability and in fruitlessly pursuing a procedural due process claim. Because we find no abuse of discretion in the trial court’s determination that the work done on these unsuccessful claims was sufficiently interconnected with the causes of action upon which appellee prevailed, we refuse to grant the requested reductions.
Once a court determines that a party has prevailed within the terms of a fee-shifting statute,
the question becomes whether the claims on which [she] lost in the same suit were unrelated to the successful ones (in which event no fees may be awarded for the work on the unsuccessful claims), or whether, instead, the losing claims included “a common core of facts” or were “based on related legal theories” linking them to the successful claim. In the latter event, the award may include compensation for legal work performed on the unsuccessful claims.
Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir.1984) (quoting Hensley, 461 U.S. at 435, 103 S.Ct. at 1940). We have reaffirmed this doctrine of interrelatedness on numerous occasions. See, e.g., Domegan v. Ponte, 972 F.2d 401, 419 (1st Cir.1992); Nydam v. Lennerton, 948 F.2d 808, 812 (1st Cir.1991); Culebras Enterps. Corp. v. Rivera-Rios, 846 F.2d 94, 102 (1st Cir.1988); Wagenmann, 829 F.2d at 225; Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir.1986). In doing so, we have noted that “the extent of a plaintiff’s success in a civil rights suit is a practical question, involving a qualitative, as well as quantitative, judgment.” Aubin, 782 F.2d at 290. In such cases, “[t]he fee should not be derived through any mechanical formula. It is an equitable judgment entrusted to the discretion of the factfinder, to be made on the basis of all the circumstances of the litigation.” General Dynamics Corp. v. Horrigan, 848 F.2d 321, 325 (1st Cir.) (citations omitted), cert. denied, 488 U.S. 992, 109 S.Ct. 554, 102 L.Ed.2d 581 (1988). Furthermore, “[w]here it would be an ‘exercise in futility’ to separate out the legal services rendered for each claim, the fee should simply be determined as a function of degree of success.” Id. (quoting Garrity, 752 F.2d at 735); cf. Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 (at bottom, “[t]he result is what matters”). If the fee-seeker properly documents her claim and plausibly asserts that the time cannot be allocated between successful and unsuccessful claims, it becomes the fee-target’s burden to show a basis for segregability.
In reviewing determinations that claims are or are not interrelated for purposes of an award of attorneys’ fees, we have exhibited great deference to the trial court’s discretion. See Domegan, 972 F.2d at 423. This deference is motivated by our conviction that “the decision as to how to separate the wheat from the chaff in a fees contest, within broad limits, is a matter for the district court’s discretion.” Metropolitan Dist. Comm’n, 847 F.2d at 17. It is the district judge, not his or her appellate colleagues, who has “had a frontrow seat at the trial and before.” Wagenmann, 829 F.2d at 225.
In this case, we are unmoved by appellants’ conclusory allegation that a large portion of the fee award was undeserved because many of the compensated hours were actually expended on claims unrelated to the claims on which plaintiff succeeded. For one thing, appellants have done little to carry their burden of showing that hours which the district court found to be hopelessly blended were in fact segregable. For another thing, the hours devoted to the procedural due process violation, the claims against the dismissed defendants, and the request for injunctive relief involved, by and large, a tightly wrapped core of common facts shared with the claims upon which the plaintiff prevailed — a circumstance that lends great credibility to the district court’s decision.
We will not paint the lily. Lipsett’s stunning victory and the series of minor setbacks suffered en route to that victory arose out of a single series of events. It is beyond question that the end result represented a pronounced legal and pecuniary triumph for her. In the process, she prevailed on her most significant claims. When interrelatedness is in question, the overall degree of the prevailing party’s success is an important datum. See Garrity, 752 F.2d at 734; see also Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. Moreover, the district court wrote a thorough and detailed opinion reviewing the imbrication between the successful and unsuccessful claims. See Fees Op. at 18-22. The court’s words carry considerable convictive force. Although we, if writing on a pristine page, might have been more miserly, we are constrained in this instance to defer to the trial court’s determination that the requisite linkage was forged. See Wagenmann, 829 F.2d at 225 (holding that a refusal to separate out time spent on distinct claims is within the trial court’s discretion if the claims are “so factually imbricated ... as to make separate treatment of the constituent attorney time inappropriate”).
Before leaving this terrain, we feel impelled to recognize a mathematical anomaly. The lodestar, as we compute it, yields more dollars for counsel ($545,281.37) than the damage award yields for plaintiff ($525,000). In the ordinary course of events, one would not expect a fee award to outpace a substantial award of money damages. In this instance, the discrepancy is explained largely by what we have referred to as the “Stalingrad defense.” While this hard-nosed approach to litigation may be viewed as effective trench warfare, it must be pointed out that such tactics have a significant downside. The defendants suffer the adverse effects of that downside here. There is a corollary to the duty to defend to the utmost — the duty to take care to resolve litigation on terms that are, overall, the most favorable to a lawyer’s client. Although tension exists between the two duties, they apply concurrently. When attorneys blindly pursue the former, their chosen course of action may sometimes prove to be at the expense of the latter.
B. Enhancement of the Lodestar.
The district court applied a fifty percent multiplier to a portion of the attorneys’ hours. Judge Pieras gave two reasons. First, he cited the quality of service (extremely high) and the degree of success (very great). Second, he found that the lawyers’ fees were contingent on success and that the aleatory nature of the engagement warranted an enhancement to compensate for the risk of nonpayment. We approach this phase of our inquiry mindful that determining whether a particular type of enhancement to a lodestar is legally viable involves mainly a question of law. Thus, appellate review of such determinations is plenary. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir.1992) (holding that claimed "errors of law are subject to plenary review”); Brewer v. Madigan, 945 F.2d 449, 452 (1st Cir.1991) (same).
1. Exceptional Performance/Results Enhancement. The Supreme Court has stated that, in some cases, the lodestar may not actually represent a reasonable attorneys’ fee, and thus, may require upward adjustment. See Blum, 465 U.S. at 897, 104 S.Ct. at 1548; Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. But, we have repeatedly cautioned that such enhancements will be rare. See, e.g., Wildman v. Lerner Stores Corp., 771 F.2d 605, 610 (1st Cir.1985). The exception is a tiny one — and we will not permit it to eclipse the rule.
While some precedent holds out the possibility of enhancing the lodestar for exceptional performance and results, see, e.g., Blum, 465 U.S. at 896-901, 104 S.Ct. at 1547-1550; Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; Conservation Law Found, of N.E., Inc. v. Secretary of the Interior, 790 F.2d 965, 971 (1st Cir.1986); Wildman, 771 F.2d at 610, more recent cases go a long way toward dampening this option. For example, in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware Valley I), the Supreme Court counselled:
Because considerations concerning the quality of a prevailing counsel’s representation normally are reflected in the reasonable hourly rate, the overall performance ordinarily should not be used to adjust the lodestar, thus removing any danger of “double counting.”
Id. at 566, 106 S.Ct. at 3098. In the same case, Justice White wrote that “the lodestar figure includes most, if not all, of the relevant factors constituting a 'reasonable’ attorneys’ fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.” Id. Thereafter, we ventured to say that Delaware Valley I made “clear that adjustments are not to be given in reward for stellar performance.” Hall v. Ochs, 817 F.2d 920, 929 (1st Cir.1987).
To be sure, both Delaware Valley I and Hall contain language intimating that there exists a strong presumption, not an outright ban, against exceptional performance/results enhancements. See Delaware Valley I, 478 U.S. at 566, 106 S.Ct. at 3098 (“[OJverall performance ordinarily should not be used to adjust the lodestar....”) (emphasis supplied); Hall, 817 F.2d at 929 (“[Ejxceptional performance is generally a function of the competence and experience that is reflected in the reasonable hourly rate_”) (emphasis supplied). We have no occasion to probe these hypothetical possibilities today. Even if there may be some few cases where a combination of sterling performance and exceptional results could conceivably justify a premium fee, this case would not fulfill the necessary criteria.
The court below awarded full, current rates to Lipsett’s counsel — rates which we believe adequately reflected the lawyers’ superior skills and the superb results obtained. Although we do not gainsay either the strength of the attorneys’ performance or the magnitude of their triumph, we see nothing in the record that indicates that the services and results overshadowed, or somehow dwarfed, the lodestar. In short, the lodestar fee, unembellished, represented the reasonable attorneys’ fee assured by section 1988. Thus, an enhancement cannot be justified on the grounds of exceptional service and results.
2. Contingency Enhancement. At the time this case was decided below, this circuit allowed enhancement for risk of nonpayment in exceptional contingent-fee cases if certain criteria were met. See Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 564 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988); Wildman, 771 F.2d at 614. In its most recent pronouncement on the subject, however, the High Court has effectively foreclosed such enhancements, ruling that “enhancement for contingency [under fee-shifting statutes] is not permitted.” City of Burlington v. Dague, — U.S. -, -, 112 S.Ct. 2638, 2643, 120 L.Ed.2d 449 (1992). That ends the matter. Although the federal fee-shifting statutes at issue in Dague were provisions of the Solid Waste Disposal Act and Clean Water Act, respectively, the Court’s reasoning applies full bore to the Fees Act, 42 U.S.C. § 1988, a fee-shifting statute which, in the Court’s words, contains “language ... similar to” the statutes at issue in Dague. — U.S. at -, 112 S.Ct. at 2641. We hold, therefore, that when a prevailing party seeks an attorneys’ fee award in a civil rights case in pursuance of the Fees Act, enhancement of the lodestar because of counsel’s risk of nonpayment is not permitted.
This ruling brings down the final curtain on plaintiff’s attempt to retain the enhancement awarded by the court below. In granting the enhancement, the court reasoned that “these attorneys would not have received any payment had the suit not been successful.” The Supreme Court has now made it pellucidly clear, however, that such risks should play no part in enhancing a lodestar fee. To the extent that
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Willis CAMPBELL, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 17185.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 26, 1963.
Decided March 21, 1963.
Miller, Circuit Judge, dissented.
Mr. Thomas Schattenfield, Washington, D. C., with whom Mr. Harry M. Plotkin, Washington, D. C. (both appointed by this court), was on the brief, for appellant.
Mr. Max Frescoln, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Tim Murphy, Asst. U. S. Attys., were on the brief, for appellee.
Before Edgerton, Wilbur K. Miller and Wright, Circuit Judges.
WRIGHT, Circuit Judge.
Appellant and a co-defendant, one Simms, indicted for robbery, were convicted, after prolonged jury disagreement and the administration of the “dynamite charge,” of the rather improbable lesser included offense, considering the facts of this ease, of grand larceny. As to appellant Campbell, the evidence was entirely circumstantial. No witness, including the victim who had known him for twenty years, testified that the appellant, or anyone resembling him, was at the scene of the crime.
The jury verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Fortunately, here the evidence as to Campbell is largely uncontroverted. The question presented concerns the reasonable inferences, based on substantial evidence, which may be drawn from these undisputed facts.
The evidence tends to show that about 10:00 A.M. on February 5, 1962, Simms and one unidentified person, riding in a 1955 Oldsmobile, forced a Volkswagen truck to stop at the curb. Simms got out of the Oldsmobile and, after a scuffle in which the driver of the truck, one Jones, was severely beaten and rendered unconscious, took a brown paper bag containing a substantial sum of money from the seat of the truck. The truck and the money were owned by Jones’ employer, a local supermarket. The circumstances on which the Government relied to prove beyond a reasonable doubt that the appellant Campbell was the other party in the Oldsmobile follow.
(1) Campbell’s fingerprint was found on the steering wheel of the robbery car. The Government fingerprint expert testified that the print was on the spoke rather than the rim of the wheel and that it could have been present there for several weeks prior to the time he discovered it. The Government’s evidence shows that the Oldsmobile was apparently owned by Simms, though the title of the car was in the name of his girl friend, Doris Mathis. Campbell dated Doris Mathis’ sister, one Marjorie Martin, and in fact on occasion drove Doris Mathis herself around in the Oldsmobile. The day before the alleged robbery the two couples drove to Arlington in the Oldsmobile to visit friends, and on the day before that Campbell drove the Oldsmobile to a bowling alley, picking up Doris Mathis en route.
(2) The Government also relied upon evidence indicating that Campbell was with Simms shortly after the robbery had occurred. A Mr. Duncan testified that he saw Simms’ car pull up at the Simms residence shortly after 10:00 A.M. on February 5, 1962, and that Simms and someone who “fit the general description of” or “resembled” Campbell mounted the porch. A Mr. Dulaney testified that as he was working on his car near Simms’ residence on February 5, 1962, shortly after 10:00 A.M., Campbell approached him and asked if he fixed transmissions on cars. Mr. Dulaney was shown a line-up in which Campbell participated, but was unable to identify him. Several days later, Mr. Dulaney identified Campbell from a photograph. He repeatedly testified that the man he saw had no mustache or a very small one. Mrs. Dulaney testified that she overheard the conversation which Mr. Dulaney described, and that she further saw Campbell walking with Simms, who was then carrying a brown paper bag. She testified that the man she saw was clean-shaven and had a scar on his face. Campbell wore a prominent mustache and had no scar. It might also be noted that Mr. and Mrs. Dulaney refused even to speak to defense counsel prior to the trial.
(3) Campbell’s keys were found in Simms’ room by the police. Campbell’s explanation as to how they got there seems elaborate, but not necessarily unreasonable in view of the relationship between the two men. He testified that he had left the keys in some clothes which Simms was to take to the cleaners for him.
In evaluating all of the above evidence, consideration must be given to another circumstance. An official of the supermarket whose funds were stolen, called as a Government witness, identified Simms as being one of two suspicious looking men in his store shortly before the crime, but could not say that Campbell was the other, in spite of the fact that he admitted knowing Campbell as a customer. Another Government witness, the cashier of the supermarket, also identified Simms as being one of two men loitering in the store shortly before the crime. She, too, admitted knowing Campbell as a customer but could not say that he was the man with Simms.
The above recitation includes essentially all of the largely undisputed facts on which the Government relied for conviction. At best, this evidence simply shows that Simms and Campbell were friends, that on occasion Campbell drove Simms’ Oldsmobile, and that Campbell was seen with Simms near Simms’ home shortly after the crime, but was not the other suspicious person loitering at the supermarket with Simms shortly before the crime. In our judgment, this is not the kind of evidence which, under our law, can deprive a man of his liberty. The close association of Simms and Campbell, together with the testimony that they were seen together shortly after the crime, certainly gives rise to a suspicion that Campbell was indeed the unidentified participant with Simms in the robbery. But “[g]uilt, according to a basic principle in our jurisprudence, must be established beyond a reasonable doubt. And, unless that result is possible on the evidence, the judge must not let the jury act; he must not let it act on what would necessarily be only surmise and conjecture, without evidence.”
Reversed and remanded with directions to enter a judgment of acquittal.
WILBUR K. MILLER, Circuit Judge, dissents.
. The “dynamite charge” is intended to “encourage” jurors to agree. For a recent critical look at the principle of “dynamite” charges, see Green v. United States, 5 Cir., 309 F.2d 852 (1962). See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Bord v. United States, 76 U.S.App.D.C. 205, 133 F.2d 313 (1942), cert. denied, 317 U.S. 671, 63 S.Ct. 77, 87 L.Ed. 539 (1942); Hoaglund v. Chestnut Farms Dairy, 63 App.D.C. 357, 72 F.2d 729 (1934). Cf. Egan v. United States, 55 App.D.C. 306, 5 F.2d 267 (1925).
. Compare Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954).
. Compare Kemp v. United States, 114 U.S.App.D.C. -, 311 F.2d 774 (1962).
. Mr. Dulaney testified that he felt he could not “play both sides of a game. * * * [I]f I am working with one side, I have no business going to the other.”
. Cooper v. United States, supra, Note 2, 94 U.S.App.D.C. at 346, 218 F.2d at 42. See also Scott v. United States, 98 U.S.App.D.C. 105, 232 F.2d 362 (1956); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229 (1947).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Willie Lee DIGBY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
No. 16159.
United States Court of Appeals Fifth Circuit.
Jan. 4, 1957.
John T. Gano, Fort Worth, Tex., Clint A. Barham, Dallas, Tex., for appellant.
Curtis White, Dallas, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
TUTTLE, Circuit Judge.
This appeal from a judgment of the trial court dismissing appellant’s suit under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., presents two questions: (1) Whether the alleged failure of the appellant to institute and prosecute his suit within twenty days would deprive the trial court of jurisdiction over the lawsuit, and (2) whether the evidence and affidavits furnished sufficient basis for the trial court’s decision that there was a failure to prosecute the suit.
If the motion to dismiss the suit on the ground that the Texas court from which it was removed to the federal district court did not acquire jurisdiction of the subject matter because of a failure to comply with the statutory requirements truly addressed itself to the lack of jurisdiction of the court, then that is*sue could properly be tried by the court without a jury. Hardin v. McAvoy, 5 Cir., 216 F.2d 399, 403.
The suit was in the District Court by removal from the Texas state court. It had been filed by a workmen’s compensation claimant who was not willing to abide by the final ruling of the Industrial Accident Board and had given due notice of such fact. Thereupon the following provision of the Texas statute became applicable :
“If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto.” Rev.Civ. Stat.Tex. art. 8307, § 5, Vernon’s Ann.Civ.St. art. 8307, § 5.
The record discloses that the suit was filed in the State court on September 19, 1955, two days after the notice, but that citation thereon was not issued by the clerk of the district court of Dallas County until October 24, 1955. After removal to the federal court appellee filed its motion to dismiss, alleging a lack of jurisdiction by reason of the following circumstances: Upon the filing of the suit the clerk was instructed not to issue citation thereon; these instructions were changed on October 24th and citation issued. It is contended that such delay in “prosecuting the suit” for more than 20 days after giving notice deprived the court of jurisdiction to entertain the action.
Of course this motion is taken as an attack on the jurisdiction of the state court over the subject matter and not as an attack on the jurisdiction of the federal court as such since upon removal the federal court’s jurisdiction over the subject matter is limited to that which could be acquired by the state court before removal.
Our determination whether this is a jurisdictional question or merely an attempt to interpose a plea of the statute of limitations must depend upon the Texas law, although appellant here seems not to question the assertion that compliance with the terms of the statute must be shown in order to confer jurisdiction on the trial court. Appellant says in his brief: “The question here presented to this Honorable Court is one of jurisdiction alone and not limitation.” To be absolutely certain that this was not an unintended concession by counsel we inspect the Texas cases cited by appellant to support his legal theory of the case. The decision cited immediately preceding the language quoted above is Maryland Casualty Co. v. Jones (Texas Commission of Appeals, opinion adopted by the Texas Supreme Court), 129 Tex. 392, 104 S.W. 2d 847, 849. The following passages are « quoted from that case in appellant’s brief here:
“Many cases involving the question of the tolling of ordinary statutes of limitation by the filing of a petition with direction to the clerk to withhold the issuance of citation are cited and relied upon. We do not find it necessary to consider or discuss these cases, because the question is not whether ordinary limitation statutes were tolled, but whether the court acquired any jurisdiction. * * *
“Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient.
“In the instant case it clearly cannot be held, as a matter of law, that the employee had no bona fide intention to prosecute his suit at the time he filed his petition.”
We think it clear that the Texas decisions unvaryingly support this proposition. In Mingus v. Wadley, 285 S.W. 1084, at page 1087 the Supreme Court ■of Texas used the following language:
“The Workmen’s Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies * *
Because of the important effect that a correct determination of the question of whether the challenge is really to the jurisdiction of the trial court has on the procedure of disposing of that challenge we have thus carefully examined the Texas decisions on this point notwithstanding the apparent concession by appellant himself.
We therefore conclude that if there was a failure to prosecute the suit within 20 days by the failure of the plaintiff to cause the citation to issue the trial court acquired no jurisdiction of the suit; further we hold that the trial court could determine the disputed fact issue as to whether the plaintiff did fail to prosecute timely upon affidavit or oral testimony and without a jury trial.
There remains the question whether there was sufficient evidence to support the finding of fact by the trial court that there was such failure to prosecute.
The sworn motion of the defendant alleged that the plaintiff had instructed the clerk not to issue citation when the suit was filed, and it is undisputed that none issued for 35 days after filing and that the clerk testified that he had been instructed not to issue it at the time the suit was filed. It was also testified to by the lawyer who had filed the suit, not counsel of record on this appeal, that he had filed several suits on September 19th, and that in one of them (which he did not identify) he had instructed the clerk not to issue the citation. On the hearing the court stated: “Either one of you can send me a statement of what the clerk’s records show” (as to the cases filed by counsel on that particular day). Immediately thereafter, appellee submitted an affidavit by two deputy clerks to the effect that counsel had filed but one suit on the 19th and none on the previous or following days.
The legal test under the Texas cases, whether “prosecution” has proceeded within 20 days is not in issue. Both parties agree that the test is whether the suit is filed within 20 days “with the bona fide intent that citation shall issue and be served at once upon the defendants.” This quotation comes from Ocean Accident & Guaranty Corp. v. May, Tex. Com.App., 15 S.W.2d 594, 597, which case is cited by both parties here as stating the law.
Appellant also cites Maryland Casualty Co. v. Jones, supra. In that case there was an immediate effort made to obtain a waiver of citation but a delay in causing the citation to issue which the court held to be sufficient compliance with the requirement. The court then repeated substantially the test of the Ocean Accident & Guaranty case, saying: “Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same.” The court then added “an undisclosed intention not being sufficient.”
Here there was ample evidence that the lawyer, at the time of filing the suit, whether at the very moment he handed it to the clerk or simply before he left the clerk’s presence, told him not to have citation issue. It is immaterial if, as appellant contends, the clerk testified that he was first told to issue and then not to do so, since he testified it was all at the time of filing. This evidence is ample to authorize the court to resolve the issue against the appellant. In fact, in light of the undisputed testimony of the clerk and the testimony of the lawyer himself, a contrary holding by the trial court would be without substantial support. It being our function not to retry this issue on the facts, but only to determine whether the court’s holding was clearly erroneous, we must affirm the judgment of the trial court.
CAMERON, Circuit Judge, concurs in the result.
. Footnote 5 there quotes from Wetmore v. Rymer, 169 U.S. 115, 120, 121, 18 S. Ot. 293, 42 L.Bd. 682 and subsequent Supreme Oourt and other authorities.
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:
|
sc_issue_2
|
37
|
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.
ANTONELLI v. CARIDINE et al.
No. 98-9933.
Decided October 12, 1999
Together with No. 99-5445, Antonelli v. United States, also on motion for leave to proceed informa pauperis.
Per Curiam.
Pro se petitioner Antonelli seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny these requests as frivolous pursuant to Rule 39.8. Antonelli is allowed until November 2,1999, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court’s Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari or petitions for extraordinary writs from Antonelli in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1.
Antonelli has abused this Court’s certiorari and extraordinary writ processes. On June 21, 1993, and November 29, 1993, we invoked Rule 39.8 to deny Antonelli informa pau-peris status with respect to two petitions for certiorari. See Antonelli v. Illinois, 509 U. S. 902, Antonelli v. O’Malley, 510 U. S. 988. Prior to the two Rule 39.8 denials, Anto-nelli had filed 34 petitions for certiorari and 2 petitions for extraordinary writs, all of which were both frivolous and had been denied without recorded dissent. Since the two Rule 39.8 denials, Antonelli has filed 17 petitions for certiorari, all of which were also frivolous and denied without recorded dissent. The instant 2 petitions for certiorari thus bring Antonellfs total number of frivolous filings to 57.
We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam). Antonellfs abuse of the writ of certiorari and of the extraordinary writs has been in noncriminal cases, and we limit our sanction accordingly. The order therefore will not prevent Antonelli from petitioning to challenge criminal sanctions which might be imposed on him. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our processes.
It is so ordered.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
SUSSER et al. v. CARVEL CORP. et al.
No. 355.
Argued April 29, 1965.
Decided May 3, 1965.
Arnold Fleischmann argued the cause for petitioners. With him on the briefs were Sidney W. Rothstein and Robert G. Levy.
Herman L. Weisman and John A. Wilson argued the cause for respondents. With Mr. Weisman on the briefs for Carvel Corp. et al. were Herbert F. Roth and Lester G. Renard. With Mr. Wilson on the brief for H. P. Hood & Sons, Inc., was Willard M. L. Robinson. Albert L. Wigor filed a brief for Eagle Cone Corp. William G. Mulligan and Doris Carroll filed a brief for Rakestraw’s Dairy Products, Inc.
J err old G. Van Cise filed a brief for the International Franchise Association, Inc., as amicus curiae.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
Mr. Justice Goldberg took no part in the decision of this case.
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_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
FEDERAL WELDING SERVICE, INC., Plaintiff-Appellee, v. Orestes A. DIOGUARDI, Jr., and Vincent E. Dioguardi, copartners doing business as Greenpoint Casket Company, Defendants-Appellants.
No. 241, Docket 26620.
United States Court of Appeals Second Circuit.
Argued Feb. 9, 1961.
Decided Nov. 16, 1961.
Booth, Lipton & Lipton, New York City (Harold L. Lipton, Lester Pollack, Edgar H. Booth, New York City, of counsel), for plaintiff-appellee.
Lichtig, Copland & Greenfield, New York City (Max M. Greenfield, New York City, of counsel), for defendants-appellants.
Before LUMBARD, Chief Judge, MADDEN, Judge, U. S. Court of Claims, and WATERMAN, Circuit Judge.
Sitting by designation.
WATERMAN, Circuit Judge.
In 1952, appellee, a Connecticut corporation of which one Brick was president, and appellants, Orestes A. Dioguardi, Jr. and Vincent E. Dioguardi, copartners doing business as Greenpoint Casket Company, a New York partnership, began the business relationship out of which this litigation arose. In accord with specifications Orestes Dioguardi furnished to appellee, appellee for the account of appellants made steel casket containers called burial vaults, which vaults appellants marketed to the mortuary trade. Appellants failed to pay for vaults delivered between September and December 1957, for other undelivered ones on hand, and for parts. Appellee, claiming a sum of $12,956.53 its due, brought suit against the appellants, residents of New York, in the New York state courts.
Appellants removed the case to the United States District Court for the Eastern District of New York and filed counterclaims. By their counterclaims appellants set forth that appellee was marketing on its own account a burial vault that was in competition with appellants’ vault; and that by so doing appellee had violated its agreement with appellants not to compete, had broken an agreement of trust and confidence, had engaged in unfair competition with appellants, and had infringed two patents of appellants, all to the great damage of the appellants. In addition to their claimed damages appellants sought a permanent injunction to restrain further breaches by appellee.
At trial appellants conceded they owed the account appellee brought suit to collect ; and the issues before the court became solely those raised by the counterclaims. After hearing, the trial judge determined that all of appellants’ counterclaims should be dismissed on the merits, and judgment was accordingly entered for appellee for $12,956.53. The exhaustive opinion of the court below is reported at 184 F.Supp. 333 (1960). Thereafter, inasmuch as it had successfully defended against the counterclaims alleging patent infringement, Federal petitioned, pursuant to 35 U.S.C. § 285, for an award of attorney fees. The court awarded $1,-750. Appellants appeal from the adverse judgment entered on their counterclaims, from the denial of their prayer for a permanent injunction, and from the award of counsel fees.
The facts behind this litigation have been carefully delineated by the trial court, and there is no necessity for reviewing them in detail. Federal Welding was engaged in a general steel-working and welding business and had manufactured metal burial vaults since 1925. Greenpoint had been engaged for many years in the business of making and selling wood and cloth-covered caskets and in selling equipment and supplies used by funeral directors.
By 1952, consecrated burial space in the Roman Catholic cemeteries of the Greater New York area had dwindled as the cemeteries had become more and more crowded. The diocese permitted three bodies to be buried, one above the other, in a single grave. Hence it was of substantial interest in the mortuary trade to devise burial structures that would permit of such burials. The problem arose from the fact that cemetery regulations prevented excavations any deeper than nine feet below the surface of the ground and municipal regulations prescribed that coffins had to be covered by at least three feet of earth. Hence only six feet of vertical space was usable for interments, and if three interments were to be had in one grave no box containing a casket could exceed 24 inches in height.
The public had become accustomed to richly decorated coffins, lined expensively, and a correlative demand had arisen for containers within which to place them for their permanent protection. These containers, though called burial vaults, are but boxes within which the coffin is placed prior to interment. By June 1952, no steel burial vault had been devised to permit safe use in triple burials. Orestes Dioguardi had devoted thought to this problem and believed that he had arrived at a design for a 24-inch-high metal burial vault that would combine eye appeal and utility and would conform to the regulations then in force in the Catholic cemeteries. He conceived of a vault that would be of an open-top design, that is, it had a lid at the top. A casket is lowered into such a vault from above and after the coffin is in place the lid is fastened down. The lid of Dioguardi’s proposed vault was composed of three panels, a central flat panel, and two slanting side panels that sloped away from the flat central section and engaged the vertical sides of the vault. Two hand grips extended upward from each of the side panels near where these panels engaged the side walls. These grips rose to a level on a horizontal plane with the flat central panel of the lid. The entire vault, because of the attractiveness of the lid design, appealed to customers. Yet three vaults could be tiered one above the other, for an upper vault could safely rest on the flat central section of the lid and the four hand grips of the vault beneath it. Surrounded by the structure of the hand grips was part of the latching mechanism for sealing the vault.
Not having any manufacturing facilities of his own, Dioguardi approached Federal in June of 1952, and after receiving certain assurances from Brick, described his idea to Brick with the aid of a shoe box and some penciled drawings. Brick then made some sketches and submitted a sample metal vault for Dioguardi’s examination; and the parties then reached an agreement by which Federal would manufacture for Greenpoint the steel open-top vaults, 24 inches high, conceived by Dioguardi, to be marketed by Greenpoint as its Jovarde model. Whether Federal also agreed to manufacture this type of vault exclusively for Greenpoint regardless of the state of the burial vault market is a substantial issue in this litigation.
The Jovarde had immediate commercial success. It was the only attractive twenty-four inch vault on the market until 1954. With Federal’s knowledge Dioguardi obtained two patents, No. 2,674,-024 covering the Jovarde vault structure, applied for August 29, 1952, granted April 6,1954, and No. 2,812,966, covering the vault’s closure means, applied for March 4, 1954, granted November 12, 1957.
In 1954 Perfection Burial Vault Co. (Perfection) produced a twenty-four inch steel air-seal vault. An air-seal vault consists of a flat pan of metal on which the coffin is placed and over which a boxlike structure without bottom, as a dome, is placed. In theory, the air captured within the structure should prevent moisture from attacking the coffin. The Perfection vault had four hand grips similar to the ones on the Jovarde except for the locking mechanism in the Jovarde grips. However, when upright, the top of the grips were in the same horizontal plane as the top of Perfection’s dome, and thereby the grips served the same purpose as the Jovarde grips served by furnishing support for a vault placed above. Brick and Orestes Dioguardi had several discussions concerning this potential competitor. Brick mentioned that his company had previously asserted a right to meet such competition on its own by itself manufacturing a competing structure, but Dioguardi denied Federal had reserved such a right. These meetings continued for about a year, during which Federal refrained from manufacturing a vault of its own. Whether Federal believed that Perfection’s vault was not a real threat to the Jovarde vault (Brick had written that the Perfection model was a water-trap), whether Federal was assured that Greenpoint would stop Perfection through a patent infringement action, or whether Federal was content for some other reason, is not clear. Nevertheless, Federal’s customers became more insistent that it directly supply them with twenty-four inch steel burial vaults, for they complained that it was very difficult to obtain vaults from Greenpoint.
Finally, on July 28, 1955, asserting its right to meet competition, Federal announced to Greenpoint that it was going to make a twenty-four inch steel vault of a different design from that of the Greenpoint vault and market it to the mortuary trade. Again Dioguardi protested, but Federal promptly did market its “Triad model,” a twenty-four inch steel air-seal vault. This model was a financial failure and was withdrawn at the end of the year. Then Federal introduced its second Triad, an open-top steel vault twenty-four inches high, directly competitive with the open-top vault it had been manufacturing for Greenpoint. This second Triad met with success. In May 1956, Greenpoint began to be delinquent in paying Federal’s account. However, the parties continued to deal with each other throughout the year 1957. Up to 1957 Greenpoint had continued to buy its Jovarde vaults exclusively from Federal, and Federal had continued to manufacture them for the account of Greenpoint. By December 1957 Green-point was causing its Jovarde vaults to be manufactured elsewhere, and by January 1958 its account with Federal had become so delinquent that Federal commenced this suit.
At the outset, without further ; discussion, we affirm the result the district court reached in declaring that the appellants’ two patents are invalid for lack of invention. We do so on the able analysis found in the opinion below, 184 F.Supp. 333 at 339-344. In so doing, we of course also affirm the dismissal of the counterclaim for infringement. However, the disposition below of the counterclaims that relate to breaches of contract requires our examination.
To determine whether the district court committed error when it found that whatever agreement there was between the parties permitted Federal to manufacture and sell a competing twenty-four-inch ■open-top burial vault, we must consider the original conversation of June 1952 as it was testified to by both of the participants. Then we must determine whether •subsequent conversations, correspondence, conduct or events modified or enlarged that original understanding.
Concerning this first discussion between Mr. Brick of Federal and him, Di■oguardi testified on direct examination:
“I said, T would like you to make a sample for me,’ which would thereafter be the steel, the open-top steel vault; that he would not manufacture it for anyone other than for me; that he would not divulge any information that I thought of, or, jointly with Mr. Brick; that he would never make a triple-burial vault for anyone else.
“Mr. Brick gave me his word of honor and his confidence, and not to mistrust my confidence in him.”
Compare Brick’s account of the same meeting on his direct examination:
“He told me that he had something in mind which we could manufacture, which he thought we could manufacture.
“He gave me to understand that it was something which could be protected, to prevent so that the sale could not become general.
“He asked me to keep it in confidence, and not to divulge his idea to anyone else.
“He gave me no idea of what he had in mind until after I had made a promise to do so.”
Dioguardi used an old shoe box to demonstrate his idea, and from his description of it, his own penciled drawing, and subsequent sketches made by Federal, the plaintiff was able to produce a sample vault for Dioguardi’s inspection on June 16, 1952. There is no evidence that during this period there was any dispute as to their working arrangements, or any modification of the terms agreed upon at the initial meeting.
On July 3,1952, Brick wrote Dioguardi as follows:
“This letter is for the purpose of giving you our written guarantee that we will not make, for any person or firm except yourselves, a 12-gauge steel, open-top burial vault with a height of 24" or less, unless one or more of our competitors start making similar vaults and selling them, either to you or to other persons or firms, in which case we reserve the right to meet competition” (Appellants’ Exhibit F).
To determine Dioguardi’s reaction to this letter we must again refer to his testimony and to that of Brick. On direct examination Dioguardi testified as follows:
“The Witness: I told Mr. Brick that the contents of this letter was utterly ridiculous because I did not want — we had the agreement, his trust — ”
“The Court: Tell us what you said.”
“The Witness: I didn’t want him to manufacture the low vaults, the 24-inch-high vaults, or any type of low vaults — that he is not my competitor- — he is my supplier. I could expect it from a competitor, to come in and try to produce the vault, but not somebody that I brought in, and bled my heart out to give him this business.
******
“I didn’t want Mr. Brick to be a competitor of mine, manufacturing the 24-inch boxes for himself or for anyone else. That was our agreement."
“By Mr. Greenfield: Q. And what did you do about that letter? A. I gave it back to Mr. Brick. I would not accept it.”
On cross examination Dioguardi reiterated his position:
“A. Mr. Brick said to me that— he showed me this letter and I told him, well, I didn’t want him to ever make a 24-inch-high vault in competition with me — we had an agreement, and he should stick to his agreement.”
“Q. In other words, it was very important to you that Mr. Brick refrain from making any 24-inch-high vaults? A. Yes, it was.
******
“Q. Referring to Exhibit F, in any event you objected to what Mr. Brick put into that letter. Is that right? A. That is right.”
Compare Brick’s testimony:
“Mr. Dioguardi assured me that he was planning to patent the design, that we wouldn’t have any competition on it, and we wouldn’t need to worry about it.
“I insisted that I wanted to reserve the right in case anything did come up, and I think the subject was dropped after that.”
In his deposition before trial Brick explained Dioguardi’s reaction to the letter more specifically.
“Q. What did Mr. Dioguardi say to you about the contents of the letter? A. Well, he never agreed or disagreed.”
Thus Brick admitted that Dioguardi did not accept his letter of July 3, 1952, or agree to its contents, and hence that the letter did not fix the parties’ contractual relations. Judge Byers recognized this when he stated:
“In view of the unsatisfactory nature of the testimony as to the finality of the plaintiff’s position as above outlined,- the letter itself cannot be relied upon as the basis of a finding that the actual contractual terms of the relationship entered into, was as therein stated.” 184 F.Supp. 333 at 336-337.
Therefore the arrangement entered into at the time of the original conversation between the parties, outlined above, in which Brick did not reserve a right to compete, remained unmodified. Nevertheless, Federal went forward with the production of Jovarde vaults without any justification for an assumption that Federal’s July 3 written elaboration or modification of the contract had been accepted by Dioguardi.
Then, near the end of 1954, Perfection put its twenty-four inch air-seal vault on the market. Brick related his eonversations with Dioguardi concerning this potential threat:
“A. I reminded Mr. Dioguardi of the terms of my letter of July 3rd, reserving the right to meet competition.
******
“He assured me that he would stop Perfection from manufacturing this vault by virtue of his patent — that I didn’t need to worry about it — and he preferred that I do not make vaults, similar vaults, for anybody else.
******
“Q. Did he tell you what kind of vaults not to make for anybody else ? A. 24-inch-high vaults.
^ # if
“We had a number of discussions, all covering the same subject, and all discussions about the same nature, the same complaints, the same answers.”
In addition to this oral evidence, letters written by Brick were introduced. On June 26, 1954, he wrote a letter to Di■oguardi in which he said: ■
“I have played ball with you right along, observing not only the letter, but also the spirit of our agreement. Altho I have tried to get your approval of some means whereby I •could sell 24" high vaults to other •casket houses, I have told all of them that in the absence of such approval 'I was not free to fill their orders for such vaults, and I don’t think that it has done us any good either, especially with Boyertown.”
.And on April 15, 1955 — after the Perfection vault had been put on the market —in a letter responding to a request by Bridge Casket Company for twenty-four-inch high vaults, Brick wrote the following:
“For a couple of years we have been making such a vault for Green-point Casket Company, the design having been originated and patented by them. This vault is open top de.sign, with a rubber gasket between the lid and the body of the vault. In view of the fact that Greenpoint have a patent on this design and that, in addition, we have agreed not to make it for anyone else, it would be impossible for us to furnish you with such vaults.”
But his customers persisted in requesting that he manufacture twenty-four inch vaults and so Brick wrote Dioguardi on July 28, 1955:
“I wanted to remind you that under the terms of our agreement with you, we are free to sell 24" high vaults anywhere, whenever any other firm starts selling them in New York.
******
“So, in self-defense, we are arranging to furnish a 24" high vault to them. It will not be the same design as yours, nor the same as Perfection’s. I don’t want the Perfection design because it is worthless, and I don’t want to use your design because I think you would prefer that we do not, and we want to go along with you as much as we can without injury to ourselves.”
What was Dioguardi’s reaction to this letter ? He testified:
“Well, I told Mr. Brick that I objected to him making, as I have objected all along, making anything that runs in competition with the vault that I was now having Mr. Brick make.
“I said, ‘It is not in the terms with our agreement. You gave me your word of honor.’ ”
And Brick’s testimony is to the same effect:
“He still objected to me furnishing 24-inch-high vaults to anyone except Greenpoint Casket Company.
“I assured him that it was a matter of business life or death for myself — that I had had to do it — that he had had notice from July 3, 1952, that I intended to do it under those circumstances, and I had no choice in the matter.”
A consideration of all this evidence leads us to conclude that the district court was clearly erroneous in holding that the parties had put a practical construction on their agreement so as to permit Federal, after Perfection offered its model to the New York mortuary trade, to place on the market an open-top vault competitive with that of Greenpoint.
Greenpoint continued to purchase its Jovarde vaults exclusively from Federal up to the year 1957. The district court apparently considered this fact important and found this conduct “consistent with an acquiescence in plaintiff’s manufacture and sale of its Triad vault, now in suit.” 184 F.Supp. 333, at 338. But this continued dealing is also consistent with the need of Greenpoint to purchase its specially made item from the sole manufacturer of that item, a supplier with whom Greenpoint had been dealing for several years. In the light of the other evidence set forth above, we find that the fact that Greenpoint continued to buy from Federal until the end of 1957 did not modify the original agreement the parties entered into.
However, unless Greenpoint obtained valid patents, the parties did not intend that Federal’s promises not to compete with Greenpoint would bind Federal after Greenpoint ceased to buy its Jovarde vaults exclusively from Federal.
Appellee is liable to the appellants for the damages appellants have suffered from the unwarranted competition caused by the marketing by appellee of its second Triad vault but the extent of those damages is limited to the period of competition ending with the termination by Greenpoint of the exclusive dealing arrangement — the time when Greenpoint first ordered its Jovarde vaults from another manufacturer. Therefore we affirm the court below in the denial of injunctive relief.
Neither side should recover counsel fees under 35 U.S.C. § 285 (1958), for though the defendants did not prevail on their assertions of patent infringement they did present a meritorious counterclaim.
Affirmed in part, and in part reversed and remanded for further proceedings, not inconsistent with this opinion.
. After Ms oral deposition had been taken, Brick added in ink the words “or disagreed” at the end of this answer as typed. Of course it was permissible for Mm to do so. However, Ms purpose was unexplained, and, as was pointed out at trial, he was not cross-examined with reference thereto.
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_circuit
|
A
|
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.
Bernard GOLDFINE et al., Appellants, v. Fred G. PASTORE, Group Supervisor, Intelligence Division, Internal Revenue Service, Appellee.
No. 5439.
United States Court of Appeals First Circuit.
Dec. 8, 1958.
Burton L. Williams, Boston, Mass., James R. McGowan, Providence, R. I., and James W. Kelleher, Boston, Mass., on motion and memorandum of appellants.
. Anthony Julian, U. S. Atty., and Andrew A. Caffrey and George H. Lewald, Asst. U. S. Attys., Boston, Mass., on memorandum of appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
Appellants have filed a notice of appeal from an “interim order” by the United States District Court for the District of Massachusetts directing them to turn over certain records to the Internal Revenue Service to assist the government in making an audit of the tax liabilities of certain corporations whose records are in the control of Bernard Goldfine or Mildred Paperman.
The proceeding before the district court was initiated by the filing on behalf of the Internal Revenue Service of a petition for enforcement of an internal revenue summons, pursuant to the provisions of §§ 7402(b) and 7604 of the Internal Revenue Code of 1954, 26 U.S. C.A. §§ 7402(b), 7604. See Brody v. United States, 1 Cir., 1957, 243 F.2d 378, certiorari denied, 1957, 354 U.S. 923, 77 S.Ct. 1384, 1 L.Ed.2d 1438.
The district court at the initial stages of the proceeding elected not to issue a turn-over direction in the breadth requested by the government. Instead it chose to exclude from its order the records relating to all tax years with respect to which there were any contentions made by the respondents that the taxing authorities had already completed an audit (the documents in question had been in their previous possession) whether or not the United States at this time admitted that such a prior audit had been made. The district court also chose to exclude from its enforcement order the records relating to any tax year with respect to which respondents had made the contention that the statute of limitations would apply (unless fraud, were found). In addition, it is to be noted that although the petition for enforcement of the internal revenue summons broadly requested an order for the turn-over of “stock certificate book” and other unspecified documents of each corporation, the district court elected to strike out these requests from the order which it entered.
The district court expressly reserved jurisdiction of the proceeding, stating that it proposed to issue “an interim order, for immediate compliance, and leave other aspects of the matter to await further testimony.”
As thus limited, the “interim order” of the court directed respondents to produce the records on or before today, Monday, December 8. The district court also denied an application for a stay of its order pending appeal. Respondents, having filed a notice of appeal from the aforesaid interim order, have filed an application to this court for an order staying the execution of the interim order.
Upon consideration of this application for a stay, together with the memorandum by appellants in support thereof, and upon consideration of the government’s memorandum in opposition to the application for a stay of the order, and the court of appeals being clearly of opinion that the interim order is a type of interlocutory order not appealable to this court pursuant to 28 U.S.C. § 1292, and the district court having failed to file a certificate pursuant to the amendment to 28 U.S.C. § 1292 by the Act of September 2, 1958 (72 Stat. 1770), to the effect that it is of the opinion that such interim order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,”
An order will be entered denying appellants’ application for stay of the District Court’s order.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appfed
|
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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LUFKIN FOUNDRY AND MACHINE COMPANY, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. LUFKIN FOUNDRY AND MACHINE COMPANY INTERNATIONAL, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 72-1084.
United States Court of Appeals, Fifth Circuit.
Aug. 24, 1972.
Rehearing and Rehearing En Banc Denied Nov. 3, 1972.
Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Division, Dept, of Justice, Washington, D. C., K. Martin Worthy, Chief Counsel, Lee H. Henkel, Jr., Chris J. Ray, Internal Revenue Service, Washington, D. C., Thomas L. Stapleton, David English Carmack, Attys., Dept, of Justice, Washington, D. C., for respondent-appellant.
Marcellus R. Meek, Thomas M. Haderlein, John C. Klotsche, Chicago, 111., for petitioners-appellees; Baker & McKenzie, Chicago, 111., of counsel.
Before TUTTLE, COLEMAN and CLARK, Circuit Judges.
CLARK, Circuit Judge:
The issue on this appeal concerns the kind of evidence a taxpayer must submit to overcome the Commissioner’s presumption of correctness in a Section 482 allocation suit. 26 U.S.C.A. § 482 (1967). Specifically, the question is, can any quantum of evidence as to a taxpayer’s . internal transactions with its own subsidiaries, standing alone, be sufficient to establish arm’s length dealing between them? We hold that it cannot.
Lufkin Foundry and Machine Company (Lufkin), a Texas corporation, sells its oil field machinery to Lufkin Foundry and Machine Company International (Lufkin International); a wholly owned Texas subsidiary of Lufkin, which in turn resells the machinery throughout the Western Hemisphere exclusive of the United States. Lufkin International receives a discount of 20% off the list price for all machinery it resells to Lufkin Machine Co., Ltd. (Lufkin Canada), a Canadian corporation wholly owned by Lufkin which sells Lufkin machinery in Western Canada. Lufkin Canada receives a 10% discount from Lufkin In-' ternational. For Lufkin International’s remaining sales, a commission of 20% of the net invoice price is paid by Lufkin. A third Lufkin wholly owned subsidiary is Lufkin Overseas Corporation, S. A. (Lufkin Overseas), a Venezuelan corporation, which also receives a 20% commission on its sales of Lufkin machinery. Lufkin Overseas sells machinery in all parts of South America except Venezuela, which is Lufkin International’s domain.
The Commissioner, exercising his power under Section 482 to allocate items of income, deductions, and credits between controlled businesses in order to prevent evasion of taxes or to clearly reflect income, allocated to Lufkin 50% of the commissions paid to Lufkin International and Lufkin Overseas, and 50% of the discount given to Lufkin International on its sales to Lufkin Canada. In the Tax Court, Lufkin presented evidence prepared by an independent certified public accountant of the reasonableness of the discounts and commissions, taking into account the vicissitudes inherent in the manner in which Lufkin transacted its international business. The Tax Court held that this evidence was sufficient to overcome the presumption of correctness. Since the Commissioner failed to adduce evidence in his own behalf, the court held he abused his discretion in making the above allocations. The Commissioner has appealed.
The parties do not dispute the general proposition that Lufkin was required to present evidence sufficient to establish that the discounts and commissions it gave would not have varied had one uncontrolled taxpayer dealt at arm’s length with another uncontrolled taxpayer.. 26 C.F.R. § 1.482-l(b)(1) (1972). This is the generally accepted standard of evidence necessary to overcome the presumption of correctness and to establish the arbitrariness of the Commissioner’s allocations. Wisconsin Big Boy Corp. v. CIR, 452 F.2d 137 (7th Cir. 1971); Baldwin-Lima-Hamilton Corp. v. United States, 435 F.2d 182 (7th Cir. 1970); Young & Rubicam, Inc. v. United States, 410 F.2d 1233, 187 Ct.Cl. 635 (1969); Spicer Theatre, Inc. v. CIR, 346 F.2d 704 (6th Cir. 1965). Lufkin contends, however, that it is possible to comply with this requirement by producing and analyzing evidence of its own marketing arrangements. The Commissioner argues that such a taxpayer must produce some probative evidence of prices charged between unrelated and uncontrolled companies to meet the concededly correct standard, or it will be rendered meaningless.
The Treasury Department has promulgated a Regulation, 26 C.F.R. § 1.482-2 (1972), to assist in the implementation of the arm’s length standard. Specifically, this Regulation delineates the methods by which one can calculate whether or not the controlled companies dealt with each other at arm’s length. For instance, Section 1.482-2(e) applies to those transactions in which Lufkin sold or otherwise disposed of its equipment to its subsidiaries. Subsection (e) (1) (i) states that allocations will be made to reflect an arm’s length price for such sales or dispositions. Thus, it is evident that arm’s length prices are the beginning point in recomputing the appropriate income applicable to each of the corporations. The subsection further states that “[a]n arm’s length price is the price that- an unrelated party would have paid under the same circumstances for the property involved in the controlled sale.”
Subsection (e) (1) (ii) prescribes the three methods by which an arm’s length price is determined. Subsections (e) (2) , (3), and (4) outline in detail the three methods. They are the comparable uncontrolled price method, the resale price method, and the cost plus method. Although these subsections are too prolix to warrant explication in this opinion, a careful reading of them demonstrates that evidence of the transactions of uncontrolled companies unrelated to the taxpayer must necessarily be presented. See American Terrazzo Strip Co. v. CIR, 56 T.C. 961 (1971).
Furthermore, subsection (e)(1) (iii) states that where the standards set out in the regulations indicate that one of the three methods is applicable, the taxpayer may avoid its application only by demonstrating that some other pricing method is clearly more appropriate. Lufkin has not shown that each of the three methods is inapplicable, nor has it shown that a more appropriate method ought to be utilized. In fact, it does not appear that this Regulation was called to the attention of or considered by the Tax Court.
As for those transactions where Lufkin paid a commission to its subsidiaries rather than executing an outright sale, Section 1.482-2(b) applies. This section deals with, inter alia, the performance of marketing services by one corporation for another member of the same corporate family. The thrust of the section is directed toward a determination of an arm’s length charge for these services. An arm’s length charge is defined as the “amount which was charged or would have been charged for the same or similar services in independent transactions with or between unrelated parties under similar circumstances considering all relevant facts.”
No amount of self-examination of the taxpayer’s internal transactions alone could make it possible to know what prices or terms unrelated parties would have charged or demanded. We think it palpable that, if the standard set by these unquestioned regulations is to be met, evidence of transactions between uncontrolled corporations unrelated to Lufkin must be adduced in order to determine what charge would have been negotiated for the performance of such marketing services.
Finally, the Supreme Court has recently said that the “ ‘purpose of section 482 is to place a controlled taxpayer on a tax parity with an uncontrolled taxpayer . . . . ’ ” CIR v. First Security Bank of Utah, 405 U.S. 394, 400, 92 S.Ct. 1085, 1093, 31 L.Ed.2d 318 (1972) [quoting 26 C.F.R. § 1.482-l(b) (1) (1971) ]. Under this latest authority it remains obvious that a court cannot discern whether a disparity in tax treatment exists if it has only evidence of what has occurred in controlled situations. Therefore, some evidence of similar business activities between uncontrolled taxpayers must be adduced.
Lufkin has requested that, in the event of a reversal here, we remand to the Tax Court to allow it to adduce the proper evidence. At oral argument, the Commissioner acquiesced in this disposition. We determine that justice requires such a course and thus remand to the Tax Court for further proceedings consistent with 26 C.F.R. § 1.482-2 (1972) and this opinion.
Reversed and remanded.
. In any case of two or more organizations, trades or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.
. His object is to arrive at the true net income of each controlled taxpayer and the technique used is the application of the standard of an uncontrolled taxpayer dealing at arm’s length with another uncontrolled taxpayer. Whenever the lack of an arm’s length relationship produces a different economic result from that which would ensue in the case of two uncontrolled taxpayers dealing at arm’s length, the Commissioner is authorized to allocate gross income and deductions. Spicer Theatre, Inc. v. CIR, 346 F.2d 704, 706 (6th Cir. 1965).
. Our reversal and remand is without prejudice to Lufkin’s right to represent to the Tax Court the issue of whether the burden of proof shifted to the Commissioner as a result of his belated filings of amendments to his answer.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
Anne M. PAVILONIS, Plaintiff, Appellant, v. Edward J. KING et al., Defendants, Appellees.
No. 79-1614.
United States Court of Appeals, First Circuit.
Submitted March 14, 1980.
Decided July 11, 1980.
Anne M. Pavilonis on brief pro se.
Francis X. Bellotti, Atty. Gen., and Stephen S. Ostrach, Asst. Atty. Gen., Boston, Mass., on brief for appellees, Edward J. King, et al.
Jerome Medalie, Steven A. Cohen and Widett, Slater & Goldman, P. C., Boston, Mass., on brief for appellee, Kenneth G. Ryder.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
Anne M. Pavilonis appeals from the dismissal of two civil rights actions she filed against various people connected with the Boston schools. She also challenges the district court’s entry of an order enjoining her from filing any lawsuit in the federal district court of Massachusetts — and prohibiting the clerk of court from accepting for filing any paper submitted by her — without authorization by a district judge.
Pavilonis’ first lawsuit was commenced on December 9, 1977, by a complaint against the then Governor Michael Dukakis, Boston School Committee President Kathleen Sullivan, and Solomon Lewenberg School Principal William I. O’Connell. The body of the complaint read, in its entirety, as follows:
1. This is an action to redress the deprivation under color of a law of the state of Massachusetts of a right secured to plaintiff by Article V Amendment 14 of the Constitution of the United States. Jurisdiction is conferred on this Court by 28 U.S.C. Section 1343.
2. Plaintiff brings this action under 42 U.S.C. Section 1986 to recover damages for defendant’s failure to prevent a wrong mentioned in 42 U.S.C. Section 1985, which defendant knew was about to occur and which defendants had the power to prevent, as hereinafter more fully appears. Jurisdiction is conferred on this Court by 28 [U.S.C.] Section 1343.
The second complaint, filed on December 19, 1977, was nearly identical, but named Northeastern University President Kenneth G. Ryder as an additional defendant.
When Pavilonis moved for appointment of counsel, these cases were referred to a magistrate. Consulting the district court docket, the magistrate found five other complaints filed by Pavilonis, against various defendants including Michael Dukakis and Kenneth Ryder, in which the same language contained in paragraph 2 of the instant complaints was used, apparently without significant elaboration. Of the opinion that the two complaints before him, even read liberally, were “completely devoid of any information that would assist the defendants . . . [in] answering],” were “completely violative of Rule 8 of the Federal Rules of Civil Procedure,” and “appealed] frivolous,” the magistrate denied the motions for appointment of counsel. Finding that Pavilonis had filed “numerous unsupported actions” that placed an undue burden on the court and deprived other legitimate litigants of a hearing, the magistrate also recommended that she be restricted from filing new actions without permission of a district judge.
Pavilonis filed objections to the magistrate’s recommendation, stating that she found the “U.S.C.A. Procedure” for filing a complaint “vague,” and indicating that she had interpreted Commentary 1 to Rule 8 as allowing specific facts to be furnished separately. She also asserted that, when served by certified mail, the defendants were furnished sufficient information to enable them to respond to the complaint. In the district court records are copies of letters sent by Pavilonis to the defendants, advising defendants Dukakis, Sullivan and O’Connell that they were being sued for denying her sons “due process of the [Massachusetts] Racial Imbalance Law” by failing to provide them transportation (and in the case of Dukakis, by failure to implement programs and services required by Massachusetts laws, chapters 622 and 636), and advising defendant Ryder that he was being sued for denying Pavilonis due process by withholding federal monies from her.
The district judge approved the magistrate’s recommendation and, on April 12,1978, issued an order enjoining Pavilonis from filing new lawsuits without permission of a judge of the District Court of Massachusetts, and ordering the clerk to refuse to file additional papers submitted by her without such permission. The district court, on September 25, 1978, refused to vacate its April 12 order. Thereafter, it denied Pavilonis permission to file two documents: (1) a “motion to dismiss” the city defendants’ motion to dismiss, in which she alleged the defendants arbitrarily denied her equal protection of chapters 622 and 636 of Massachusetts law and demanded the implementation of a unitary school system and damages, and (2) a “motion to obtain a ruling” that forced bussing to an inferior school was a deprivation of equal protection of the right to property, assured by the above-cited Massachusetts laws. On September 11, 1979, the complaints were dismissed, and Pavilonis appealed.
We have little difficulty upholding the district court’s dismissal of the complaints. Although pro se complaints are to be read liberally, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), these complaints are so hopelessly general that they could give no notice of Pavilonis’ claims. Even if the letters sent to the defendants could properly be read along with the complaints, they did little to flesh out Pavilonis’ allegations. And, although the magistrate’s report alerted Pavilonis to the deficiencies in her allegations, the documents she tendered for filing in the months afterward were hardly informative and no curative amendments of the complaints were effected. Thus, Pavilonis’ pleadings never met the minimum standards applicable to civil rights cases:
Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline the facts constituting the alleged violation.
Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979). See Leonardo v. Moran, 611 F.2d 397, 398 (1st Cir. 1979); Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir. 1977). Dismissal was therefore warranted.
Whether Pavilonis was properly enjoined from filing additional pleadings or new lawsuits without permission from a district judge is a closer question. In recommending an injunction against her filing new actions without permission, the magistrate relied on Rudnicki v. McCormack, 210 F.Supp. 905 (D.R.I.1962), appeal dismissed sub nom. Rudnicki v. Cox, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed.2d 714 (1963), and Rudnicki v. Department of Massachusetts Attorney General, 362 F.2d 337 (1st Cir. 1966). In Rudnicki v. McCormack, such an injunction was entered against a plaintiff who had filed “baseless, vexatious, and repetitive” suits against judges, judicial officers, and attorneys, in an effort to relitigate cases that had been dismissed. 410 F.Supp. at 907-09. The court ruled that it had equitable and supervisory power to protect the defendants from harassment and the court itself from the burden of processing frivolous and unimportant papers. Id. at 909-11. In Rudnicki v. Department of Massachusetts Attorney General, we noted the existence of the injunction against Rudnicki and upheld the district court’s denial of leave to file a new action. 362 F.2d at 338. More recently, a similar injunction was entered against another litigant who had filed complaints comprised of vituperative attacks against judges who had ruled against him; upholding the district court’s refusal to allow a new complaint of a similar ilk to be filed, we said, “The law is well established that it is proper and necessary for an injunction to issue barring a party, such as appellant, from filing and processing frivolous and vexatious lawsuits.” Gordon v. United States Department of Justice, 558 F.2d 618 (1st Cir. 1977).
While we reject Pavilonis’ argument that enjoining litigation is unconstitutional, see id., we do not think her case fits into the classic Rudnicki-Gordon mold. Those cases, like many others from other jurisdictions, involved plaintiffs bent on reopening closed cases and evidently also intent on harassing defendants, often judges who had ruled against them. Here, the magistrate determined only that Pavilonis had filed “numerous unsupported” actions, using the same deficient complaints. It does not appear that Pavilonis was attempting to reopen closed cases; according to the magistrate’s report, when injunctive relief was recommended at least four of Pavilonis’ five other lawsuits were still pending. Likewise, although Pavilonis is obviously dissatisfied with the Boston school system and certain individuals connected with it, it is not clear that her litigation was malicious and designed to harass. Furthermore, it is possible that her use of the same complaint in several cases resulted from a misunderstanding of Rule 8, rather than a desire to mask repetitive litigation or to make response by the defendants difficult.
Nevertheless, Pavilonis’ lawsuits were at least to some extent duplicative; for example, in the two cases now on appeal, she sued certain defendants twice in two weeks and there is no apparent difference between the actions. In addition, all her complaints suffered from the same deficiencies. Faced with a situation where its docket was being burdened and defendants were being called upon to answer multiple, impenetrable complaints, the district court was justified in taking action. Although the entry of a broad injunction, pertaining to all pleadings and future lawsuits, was a drastic measure, we are not convinced the court exceeded the scope of the supervisory and equitable powers it was said to possess in Rudnicki v. McCormack, supra, 210 F.Supp. at 908-10. We think the injunction must be interpreted as requiring only that Pavilonis satisfy a district judge that her pleadings are sufficiently plain and definite to satisfy Rule 8 and to warrant a response. This is, appropriately, a considerably lower barrier than was imposed upon Rudnicki, who we held was bound to demonstrate he had a meritorious case, not just to make allegations that would survive a motion to dismiss. Rudnicki v. Department of Massachusetts Attorney General, supra, 362 F.2d at 338. See Rudnicki v. McCormack, supra, at 911 (plaintiff required to show he had at least a prima facie case).
We would, of course, expect that, if a judge denied permission to file a complaint or additional papers, there would be a signed order to that effect.
Although upholding the district court in this instance, we emphasize that litigiousness alone will not support an injunction against a plaintiff, Kane v. City of New York, 468 F.Supp. 586, 590 (S.D.N.Y.), aff’d without op., 614 F.2d 1288 (2d Cir. 1979), and that the use of such measures against a pro se plaintiff should be approached with particular caution, Hill v. Estelle, 423 F.Supp. 690, 695 (S.D.Tex.1976). Generally, this kind of order should not be considered absent a request by the harassed defendants. We expect that injunctions against litigants will remain very much the exception to the general rule of free access to the courts.
Affirmed.
. On March 10, 1978, Pavilonis moved to amend the complaint to delete Kenneth Ryder as a defendant.
. The five suits were filed between September 1977 and January 1978; apart from the two that named Dukakis and Ryder as defendants, two of the suits were against former Secretary of Health, Education and Welfare Joseph Califano, Jr., and the other was against former Welfare Commissioner Alexander Sharp. According to the magistrate’s opinion, in two cases Pavilonis furnished some explanation of her claim in response to a motion to dismiss; the magistrate’s opinion does not indicate the subject matter of any of these suits. In two of the cases, we have affirmed orders dismissing Pavilonis’ complaints for failure to state a claim, noting that her allegations were vague and conclusory. Pavilonis v. Ryder, Misc. No. 78-8059 (June 9, 1978); Pavilonis v. Califano, 601 F.2d 571 (1st Cir. 1979). So far as we can tell, both of these suits related in some way to the Boston schools.
. As the magistrate noted, Rule 8 requires that a pleading set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
. Pavilonis appealed the district court’s September 25, 1978 refusal to vacate its April 12, 1978 order, but we dismissed the appeal because final judgments had not been entered in her lawsuits. After the district court dismissed her complaints on September 11, 1979, reiterating its order of April 12, 1978, Pavilonis took the instant appeals.
. We have no reason to doubt that, had Pavilonis proffered an amended complaint with specific factual allegations underlying her claim, the district judge would have allowed her to file it.
. Although Pavilonis seems to argue in her brief that dismissal was improper because the defendants had not yet filed motions to dismiss, we think the court was entitled to act sua sponte and was not obliged to have its docket clogged indefinitely. Pavilonis had adequate warning that her complaints were vulnerable to dismissal and time to defend them or amend them. Compare Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir. 1974) (court may dismiss complaint at its own initiative, but not without affording notice and opportunity to be heard).
. For similar cases in other jurisdictions, see, e.g., Ruderer v. United States, 462 F.2d 897, 899 (8th Cir.), appeal dismissed and cert. denied, 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Kane v. City of New York, 468 F.Supp. 586, 590-91 (S.D.N.Y.), aff'd without op., 614 F.2d 1288 (2d Cir. 1979); Hanson v. Goodwin, 432 F.Supp. 853, 858 (W.D.Wash. 1977); Hill v. Estelle, 423 F.Supp. 690, 695 (S.D.Tex.1976); Adams v. American Bar Association, 400 F.Supp. 219, 228 (E.D.Pa.1975); Boruski v. Stewart, 381 F.Supp. 529, 535 (S.D.N.Y.1974). Compare Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1222 (5th Cir. 1976); Gambocz v. Yelencsics, 468 F.2d 837, 842 (3d Cir. 1972); Ward v. Pennsylvania New York Central Transportation Co., 456 F.2d 1046, 1048 (2d Cir. 1972); Clinton v. United States, 297 F.2d 899, 900-02 (9th Cir. 1961) (injunctions against relitigation) with Chandler v. O’Bryan, 445 F.2d 1045, 1056-57 (10th Cir. 1971); Omernick v. Doyle, 426 F.Supp. 404, 407-08 (W.D.Wis.1977) (injunctions denied).
. The Rudnicki and Gordon injunctions only related to lawsuits against state or federal judges, officials or employees. Gordon v. United States Department of Justice, 558 F.2d 618 (1st Cir. 1977); Rudnicki v. McCormack, 210 F.Supp. 905, 911 (D.R.I.1962), appeal dismissed sub nom. Rudnicki v. Cox, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed.2d 714 (1963).
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_casetyp1_7-3-5
|
J
|
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 - misc economic regulation and benefits".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAPTIST HOSPITAL, INC., Respondent.
No. 76-1675.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 7, 1978.
Decided May 10, 1978.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., William R. Stewart, Washington, D. C., Raymond A. Jacobson, Director, Region 26, N. L. R. B., Memphis, Tenn., for petitioner.
Joseph H. Clark, David Vaughan, Elarbee, Clark & Paul, Atlanta, Ga., for respondent.
William F. Ford, Michael H. Campbell, Fisher & Phillips, Atlanta, Ga., for amicus curiae Hospital Corp.
Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.
LIVELY, Circuit Judge.
This case concerns the validity of a “no-solicitation rule” in a hospital setting. Following a hearing an administrative law judge concluded that the rule is invalid on its face to the extent that it prohibits solicitations at any time in all areas of the hospital which are accessible to, or utilized by the public. He also held that no unusual circumstances had been established which would justify the otherwise invalid restrictions contained in the rule. The National Labor Relations Board (the Board) considered exceptions filed by Baptist Hospital, Inc. (the hospital) and agreed with the conclusion of the administrative law judge that promulgation and enforcement of the no-solicitation rule constituted a violation of provisions of the National Labor-Management Relations Act of 1947, as amended, 29 U.S.C. §§ 141, et seq. (the Act). The Board’s decision and order are reported at 223 NLRB No. 34 (1976).
Baptist Hospital, located in Nashville, Tennessee, is a non-profit general hospital with 600 beds and more than 1800 employees. For some years prior to 1974 the hospital had enforced a rule against solicitations which applied to the entire hospital premises. In August 1974 a union began attempts to organize employees of the hospital. Also, during that month the Act was amended to give the Board jurisdiction over nonprofit health care institutions.
W. T. Victory, vice president of personnel services for the hospital, testified that the no-solicitation rule was revised with the advice of counsel. The present rule, effective since October 4, 1974, reads as follows:
No solicitations of any kind, including solicitations for memberships or subscriptions, will be permitted by employees at any time, including work time and non-work time in any area of the Hospital which is accessible to or utilized by the public. Anyone who does so will be subject to disciplinary action. In those work areas of the Hospital not accessible to or utilized by the public, no solicitation of any kind, including solicitations for memberships or subscriptions will be permitted at any time by employees who are supposed to be working, or in such a way as to interfere with the work of other employees who are supposed to be working. Anyone who does so and thereby neglects his work or interferes with the work of others will likewise be subject to disciplinary action.
No distributions of any kind, including circulars or other printed materials, shall be permitted in any work area at any time.
In publishing the revised rule the hospital explained its purpose in an employee’s handbook as being “to help protect the privacy and rights of employees as well as to help maintain a good working environment and appearance throughout the hospital.”
The same witness testified that, as applied by the hospital, the rule prohibits all soliciting and the distribution of literature by employees in any area open to the public or any area where work is performed. Included in the areas closed to solicitation are a gift shop and cafeteria which are open to employees, visitors to the hospital, and with some exceptions, to patients. Solicitation and distribution are permitted, however, in several employees’ lounges which contain vending machines, 28 utility rooms, 26 nurses’ stations and those rest rooms which are restricted to employees. There was uncontradicted testimony that employees have openly solicited for a union in some of these areas without interference. Vice-president Victory also testified that there was no change in application of the hospital’s longstanding rule against solicitations after October 4, 1974; that the revisions were made in order to be in compliance with the law. He conceded that union activity was “involved” in adoption of the revised rule.
The witness Victory related that when the union commenced its activities some employees were stopped for discussion of the pros and cons of organizing and this caused a disruption of the work force at various places throughout the hospital. The revised rule was required, the witness stated, to prevent disruption of patient care. It would not be in the best interest of the patients to change the rule, in the opinion of Victory, who stated that this was also the consensus of doctors with whom he had discussed the possibility of changing the rule.
Two members of the medical staff of the hospital testified. Both were experienced physicians engaged in private practice. Dr. Russell T. Birmingham testified that it was important to shield patients from emotional problems because the attitude of a patient and the patient’s family have “a great deal to do with the recovery” of the patient. The witness stated that the need to maintain a tranquil atmosphere is not limited to treatment areas, since patients are permitted to move around in all areas of the hospital. If union activity should become “volatile or hostile in any form” it was Dr. Birmingham’s opinion that such activity would have a potential for affecting patients and their families adversely.
Dr. Greer Ricketson testified that any “nonprofessional attitude” among hospital employees is upsetting to patients. He stated that patients and their families are disturbed when people who are supposed to be taking care of them seem to have their minds on other things. This witness, who was chief of the medical staff of the hospital at the time of the hearing, stated emphatically that the rule and the reasons for the rule apply equally to all solicitations. Explaining the need for a rule which covers the entire working and public-access areas of the hospital, Dr. Ricketson referred to the present-day mobility of patients and the fact that an event which disturbs the visiting family invariably gets back to the patient.
No evidence was introduced which contradicted in any way the testimony of the two doctors that important medical reasons exist for maintaining the no-solicitation rule of the hospital. The administrative law judge summarized their testimony and found nothing “new or unusual” in it. He concluded that the hospital had failed to establish the existence of unusual circumstances at Baptist Hospital sufficient to warrant approval of a rule which prohibits solicitation in nonworking areas on nonworking time. The Board agreed with this conclusion without discussion, merely holding:
By promulgating and maintaining a no-solicitation rule which prohibits employees from soliciting for the Union during their nonwork time in areas of the hospital other than immediate patient care areas, respondent has violated Section 8(a)(1) of the Act.
Both the decision of the Board and that of the administrative law judge are weakened by their reliance on previous Board orders which have been denied enforcement upon judicial review. The administrative law judge relied almost exclusively on Summit Nursing Home, Inc., 196 NLRB No. 110 (1972), in holding the no-solicitation rule in the present case invalid. This court denied enforcement of the Board’s order in its entirety in N. L. R. B. v. Summit Nursing Convalescent Home, 472 F.2d 1380 (1973). In affirming the decision of the administrative law j udge in the present case the Board based its holding squarely on its decision in St. John’s Hospital & School of Nursing, 222 NLRB No. 182 (1976). The portion of the decision and order thus relied upon was denied enforcement by the court of appeals. St. John’s Hospital and School of Nursing, Inc. v. N. L. R. B., 557 F.2d 1368 (10th Cir. 1977).
In ordering that the ban against solicitation by non-working employees in the present case be limited to areas of “immediate patient care” the Board in effect held that the hospital had proven “special circumstances” only in relation to those areas. The proof is otherwise. Three witnesses emphasized the fact that many patients, though hospitalized for serious illnesses, are permitted to move freely through public areas of the hospital. Ambulatory patients are permitted to visit with their families and friends in the lobbies and public lounges. They are free to visit the gift shop and, with a doctor’s permission, to eat in the public cafeteria. These witnesses, two physicians and an experienced hospital administrator, repeatedly referred to the necessity of creating and maintaining a tranquil atmosphere throughout the hospital for patients and visitors. The testimony of the medical witnesses related this requirement directly to the well-being of the patients. The witnesses made no distinction between areas of immediate patient care and other areas of the hospital. Dr. Ricketson stated that patient care is the only purpose of the hospital, and anything which interferes with patient care should be forbidden.
Recent Board orders limiting a hospital’s right to ban solicitation and distribution to “immediate patient care areas” have been enforced. See Lutheran Hospital of Milwaukee, Inc. v. N. L. R. B., 564 F.2d 208 (7th Cir. 1977); N. L. R. B. v. Beth Israel Hospital, 554 F.2d 477 (1st Cir. 1977), cert. granted, 434 U.S. 1033, 98 S.Ct. 764, 54 L.Ed.2d 780 (1978). We are urged to follow those decisions, but decline to do so. In the setting of a modern general hospital it is difficult to define the areas of immediate patient care. One of the medical witnesses in the present case referred to the importance of the “psychological attitudes” of patients. A patient’s attitude toward the hospital and the likelihood of receiving expert care while there depends in part on whether he perceives the staff as concerned exclusively with patient care. This need for professionalism was not limited by the witness to doctors and nurses, but was set forth as a requirement for all employees. Both physician witnesses testified that any activity within the hospital involving volatile or hostile discussion of any subject, whether observed by patients or related to them by visiting family or friends, would be detrimental to their well-being. There is no evidence in this case to justify an “immediate patient care” area limitation on the no-solicitation rule.
We are persuaded that the reasoning of the courts in St. John's Hospital, supra, and Baylor University Medical Center v. N. L. R. B., 578 F.2d 351 (D.C.Cir. 1978), is correct. In St. John’s the no-solicitation rule was enforced in all areas of the hospital, including a cafeteria and gift shops to which patients had access. The court there concluded that the Board had failed to give sufficient weight to the special needs of hospital patients and that the Board’s balancing of the interests involved was unreasonable. Congressional concern for the special circumstances of hospitals as shown by the legislative history of the 1974 amendments to the Act was noted in both the St. John’s and Baylor University opinions. Both courts related this concern to the necessity of avoiding disruptions in the continuity of patient care. The D.C. Circuit specifically found that this concern was not limited to prevention of disruptions which would be caused by strikes and picketing.
The Board urges, apart from application of the present rule to lobbies, corridors and visitors’ lounges, that no ban on solicitation or distribution in the public cafeteria and gift shop is permissible. It is argued that these locations are not involved in the “main function” of the hospital and should be available to nonworking employees for organizational activities. The Board asserts that the commercial and financial justifications which have led it to uphold prohibitions on solicitations in restaurants and retail stores do not apply to a hospital setting. See, e. g., Marshall Field & Co. v. N. L. R. B., 200 F.2d 375 (7th Cir. 1952, amended 1953); N. L. R. B. v. May Department Store, Inc., 154 F.2d 533 (8th Cir.), cert. denied, 329 U.S. 725, 67 S.Ct. 72, 91 L.Ed. 627 (1946); McDonald’s of Palolo, 205 NLRB No. 78 (1973). This same argument was made by the Board and rejected by the court in St. John’s and by a majority of the panel in Baylor University, supra. The Board’s position was adopted in N. L. R. B. v. Beth Israel Hospital, supra. There the court held that the hospital failed to sustain its burden of showing that special circumstances justified a ban on solicitations in a cafeteria and coffee shop. However, we conclude that the hospital did carry its burden in the present case. Here the record contains uncontradicted testimony that these areas are part of the total environment of the hospital where the medical needs of patients are served by maintaining a climate free of strife and controversy. We decline to follow Beth Israel.
As has been pointed out Baptist Hospital has a large number of areas which are closed to patients and the public where the no-solicitation rule does not apply. This fact alone would not validate an otherwise unlawful no-solicitation rule. However, since we conclude that the hospital did carry its burden of establishing special circumstances, the existence of numerous locations which are open to solicitation further convinces us that the hospital’s rule does not deny its employees those rights secured to them by section 7 of the Act.
Both medical witnesses stated that person-to-person solicitation and distribution of literature in the parking lot should have no detrimental effect on patients within the hospital. Vice-president Victory agreed that solicitation and distribution in the parking lot would not be objectionable so long as the premises were not littered and solicitation did not “create a nuisance.” Other rules not in issue here provide the means for preventing noisy mass meetings and littering of the premises. Accordingly, in denying enforcement of the Board’s order we construe the hospital’s no-solicitation, no-distribution rule to apply only to areas within the various buildings occupied by the hospital and those exterior areas immediately adjacent to entrances used by patients and the public.
The administrative law judge made findings that the hospital had discriminated against one employee for his union activities. Most of his activities were prohibited by the rule which we have found to be valid. However, there is some evidence to support inferences of discrimination against this employee for protected activities unrelated to the no-solicitation rule. Nevertheless, the broad language of the Board’s order with respect to “interfering with, restraining or coercing its employees in the exercise of their rights” to be represented by a union is not justified. Enforcement of the order of the Board is denied in its entirety except insofar as it relates to Clyde Russell French, an employee. The order relating to French is incapable of enforcement without modification.
The court was advised at oral argument that Clyde Russell French has died, abating that portion of the order which directs the hospital to offer him employment. The “make whole” provisions of the order appear to rest largely upon the determination of the administrative law judge and the Board that the hospital’s no-solicitation rule is invalid. To the extent that these provisions rest on that assumption, they will not be enforced. We remand to the Board for a specification of what remedial provisions, if any, of its previous order are unrelated to the hospital’s no-solicitation rule.
. Section 8(a)(1), codified as 29 U.S.C. § 158(a)(1), reads:
§ 158. Unfair labor practices
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
Section 157, referred to above, the codification of section 7 of the Act, provides:
§ 157. Right of employees as to organization, collective bargaining, etc.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
|
sc_casesourcestate
|
33
|
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.
Michael Damon RIPPO, Petitioner
v.
Renee BAKER, Warden.
No. 16-6316.
Supreme Court of the United States
March 6, 2017.
PER CURIAM.
A Nevada jury convicted petitioner Michael Damon Rippo of first-degree murder and other offenses and sentenced him to death. During his trial, Rippo received information that the judge was the target of a federal bribery probe, and he surmised that the Clark County District Attorney's Office-which was prosecuting him-was playing a role in that investigation. Rippo moved for the judge's disqualification under the Due Process Clause of the Fourteenth Amendment, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. But the trial judge declined to recuse himself, and (after that judge's indictment on federal charges) a different judge later denied Rippo's motion for a new trial. The Nevada Supreme Court affirmed on direct appeal, reasoning in part that Rippo had not introduced evidence that state authorities were involved in the federal investigation. Rippo v. State, 113 Nev. 1239, 1246-1250, 946 P.2d 1017, 1023-1024 (1997) (per curiam ).
In a later application for state postconviction relief, Rippo advanced his bias claim once more, this time pointing to documents from the judge's criminal trial indicating that the district attorney's office had participated in the investigation of the trial judge. See, e.g., App. to Pet. for Cert. 236-237, 397. The state postconviction court denied relief, and the Nevada Supreme Court affirmed. Rippo v. State, 132 Nev. ----, ----, 368 P.3d 729, 743-745 (2016). It likened Rippo's claim to the "camouflaging bias" theory that this Court discussed in Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). The Bracy petitioner argued that a judge who accepts bribes to rule in favor of some defendants would seek to disguise that favorable treatment by ruling against defendants who did not bribe him. Id., at 905, 117 S.Ct. 1793. We explained that despite the "speculative" nature of that theory, the petitioner was entitled to discovery because he had also alleged specific facts suggesting that the judge may have colluded with defense counsel to rush the petitioner's case to trial. See id., at 905-909, 117 S.Ct. 1793. The Nevada Supreme Court reasoned that, in contrast, Rippo was not entitled to discovery or an evidentiary hearing because his allegations "d[id] not support the assertion that the trial judge was actually biased in this case." 132 Nev., at ----, 368 P.3d, at 744.
We vacate the Nevada Supreme Court's judgment because it applied the wrong legal standard. Under our precedents, the Due Process Clause may sometimes demand recusal even when a judge " 'ha[s] no actual bias.' " Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). Recusal is required when, objectively speaking, "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ; see Williams v. Pennsylvania, 579 U.S. ----, ----, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016) ("The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias" (internal quotation marks omitted)). Our decision in Bracy is not to the contrary: Although we explained that the petitioner there had pointed to facts suggesting actual, subjective bias, we did not hold that a litigant must show as a matter of course that a judge was "actually biased in [the litigant's] case," 132 Nev., at ----, 368 P.3d, at 744 -much less that he must do so when, as here, he does not allege a theory of "camouflaging bias." The Nevada Supreme Court did not ask the question our precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable. As a result, we grant the petition for writ of certiorari and the motion for leave to proceed in forma pauperis, and we vacate the judgment below and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
The court further relied on its bias holding to determine that Rippo had not established cause and prejudice to overcome various state procedural bars. 132 Nev., at ----, 368 P.3d, at 745. Because the court below did not invoke any state-law grounds "independent of the merits of [Rippo's] federal constitutional challenge," we have jurisdiction to review its resolution of federal law. Foster v. Chatman, 578 U.S. ----, ----, 136 S.Ct. 1737, 1746, 195 L.Ed.2d 1 (2016).
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_appfiduc
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mary B. SCHENK, Administratrix of the Estate of Robert F. Schenk, Deceased, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee. William E. LOEHR, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee.
Nos. 17387, 17388.
United States Court of Appeals Sixth Circuit.
May 19, 1967.
William G. Reamon, Grand Rapids, Mich., Marcus, McCroskey, Libner, Reamon, Williams & Dilley, by Michael 0. Barron, Grand Rapids, Mich., on brief, for appellants.
Douglas W. Hillman, Grand Rapids, Mich., Hillman, Baxter & Hammond, by .Robert N. Hammond, Grand Rapids, Mich., on brief, for appellee.
Before O’SULLIVAN, Circuit Judge, and WILBUR K. MILLER and CECIL, Senior Circuit Judges.
Of the United States Court of Appeals for the District of Columbia Circuit, sitting by designation.
PER CURIAM.
These appeals are from summary judgments granted to Packaging Corporation of America in actions brought against it and others to recover damages for the death of Robert F. Schenk and injuries to William E. Loehr, which resulted from an automobile accident in Michigan. The car in which they were riding came in contact with a tractor-truck loaded with pulpwood, or with some portion 0f the load, and the death and injuries followed.
The Packaging Corporation’s motion for summary judgment was based on the fact that the pulpwood was being delivered to one of its plants by an independent contractor over whom it had no sort of control, nor had it exercised or attempted to exercise control over him. The District Court granted the motions and directed the entry of final judgments in favor of Packaging Corporation, as he expressly determined under Rule 54(b), Fed.R.Civ.P., that in these multiple party actions there was no just reason for delay. Thus the appeals are properly before us even though the claims against the other defendants have not been adjudicated.
We affirm the judgments of the District Court on the opinion of District Judge Noel P. Fox in Schenk, Admr. v. Packaging Corporation of America (our number 17,387), which is reported in 267 F.Supp. 439 (1966).
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_respond1_3_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
M. T. STRAIGHT’S TRUST, Francis L. McCrea, Trustee, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15458.
United States Court of Appeals Eighth Circuit.
June 7, 1957.
Richard E. Williams, Des Moines, Iowa, for petitioner.
Melva M. Graney, Atty., Dept of Justice, Washington, D. C. (Charles K. Rice, Acting Asst. Atty. Gen., and Lee A. Jackson, Hilbert P. Zarky and Louise Foster, Attys., Dept, of Justice, Washington, D. C., were with her on the brief), for respondent.
Before STONE (retired), WOOD-ROUGH and VAN OOSTERIIOUT, Circuit Judges.
STONE, Circuit Judge.
Merton T. Straight was one-half owner of a partnership — the Adel Clay Products Company. December 31, 1945, he executed an instrument conveying irrevocably “Three-fourths of his half interest in the partnership” to trustees in trust for the benefit of his wife, a daughter and a son (with two sisters as ultimate contingent beneficiaries), one-third of the annual income therefrom to be paid to each of the three primary beneficiaries with provisions for payments to either of the two children in the discretion of the trustees. In view of the issues presented here, it is unnecessary to detail the provisions of this trust instrument in full. It declared the fullest control of the corpus as to investment, changing and treatment thereof in the trustees. The payments were to the wife, one-third of the income from the trust annually; and to each of the two children annually such part of the income, "but not exceeding one-third”, as the trustees may determine “is necessary for his [her] education, comfort and support”.
In 1946-1948, the trustees filed separate annual income tax returns for each of the three beneficiaries. The revenue officials challenged this method and insisted that there should be but one annual return to cover all of the three beneficiaries, thus treating the annual earnings of the trust as a unit for taxation purposes. We need not detail the various proceedings in connection with this controversy between the trustees and the tax officers as to whether this trust deed created three separate units or only one unit for national income tax purposes. It suffices to state that the trustees finally paid the claimed deficiencies on August 15, 1952, and, on August 15, 1952, filed a petition for refund in the Tax Court claiming that the trust deed created three separate trust estates for income tax purposes.
On August 13, 1953, in an Iowa State Court, Merton T. Straight filed a petition in equity for reformation of this trust deed to carry out his intention to establish separate trust estates — one each for his wife, for his daughter and for his son respectively. Neither the Commissioner nor any governmental officer or agency was made a party to this action; nor did such participate therein. On September 18, 1953, after trial, the Iowa Court entered a decree declaring that Straight had always thought and intended to create three separate trusts by the trust deed of December ■31, 1945; that the trustees had always thought and administered that deed as creating three separate trusts; had set up and maintained a separate set of accounts for each of the three trusts; had distributed to the three beneficiaries on that basis; and that the original trust deed was ambiguous.
To rectify this situation, the chancellor entered a decree approving three separate trust deeds — one for each of the primary beneficiaries; declared them to express the true intent of the grantor (Straight); and declared such substitution to relate back “nunc pro tunc” to the execution of the original trust deed.
September 20, 1954, petitioner filed an amended petition before the Tax Court. The amended petition set forth a resume’ of the reformation proceedings and prayed the Tax Court to determine that the original trust deed created three “separate and distinct taxable entities”; that the liabilities and deficiencies set forth in the Notice of Deficiency against the M. T. Straight Trust be eliminated; and that the reformation decree “is binding on the Commissioner of Internal Revenue, Respondent herein, in connection with the determination of the tax liability of the Petitioner for the calendar years 1947 and 1948”.
In the “Stipulation of Facts”, filed in the Tax Court (September 20, 1954) is the following: “The petitioner is not contesting the proposed deficiencies shown in the Notice of Deficiency on any ground other than that arising from respondent’s [Commissioner of Internal Revenue] determination that the trust conveyance of December 31, 1945, Exhibit 1-A, created an entity taxable for the years 1947 and 1948 as a single trust, despite the reformation proceedings in the Iowa courts referred to above in paragraphs 12 to 16, inclusive.”
June 14, 1955, the Tax Court entered its decision, determining tax deficiencies for the years 1947 and 1948 in the amounts of $3740.65 and $411.34 respectively. From that decision of the Tax Court, one of the trustees brings this petition for review.
The issues before the Tax Court and now before us are whether the name pro tunc reformation decree of the Iowa State Court is effective, for federal income tax purposes, from the date of the original trust deed of December 31, 1945. The Tax Court held that it was not effective for the years 1947 and 1948. The other issue is whether the original trust deed (December 31, 1945) created a single entity for income tax purposes.
We have no hesitation in declaring that the original trust instrument of December 31, 1945 provided for a single tax unit for federal income tax purposes. There is no dispute that this instrument provided for but one pair of trustees to whom was placed in trust one'corpus, described as “Three-fourths of his half interest in the partnership known as the Adel Clay Products Company”. There was no segregation of this into three trust entities. It was a single trust designating and conveying a definite single corpus. Clearly, the trust was to be administered as a unit without any separation into three separate trusts. The Commissioner was fully within his rights and duties in determining that the annual return for income tax purposes should cover the entire income from the trust as a single unit for national income tax purposes.
The remaining issue here is what effect has the Iowa decree of reformation retroactively on the tax years 1947 and 1948. We pass to consideration of the effect of the Iowa Court’s nunc pro tunc decree. The intention of that Court to include these tax years (1946-1948) is clear. The language of the decree “mmc pro tunc” is definite. The broad rule as to the effect of a reformation decree is that it relates back to the date of „the instrument reformed and is binding upon all except bona fide purchasers without notice “and those standing in similar relations” — in short, covering those who have acquired some legal rights which would be destroyed or injured by subsequent reformation nunc pro tunc. It is clear that the main object and effect intended by the taxpayer in bringing and prosecuting the Iowa case was to lessen the national income tax for the years involved. The annual loss of income would be the difference between the tax calculated upon the entire income as a taxable unit and the tax on the same amount of income treated as derived from three taxable units, each having one-third of the total income. The situation which determined the application of the income tax to these two years had occurred and become fixed before this reformation proceeding was filed. We believe it cannot be altered by a nunc pro tunc decree of a state court. The national revenue is not subject to such control.
We think that the Iowa decree cannot be effective retroactively to cover the two years — 1947 and 1948. We recognize that an unqualified reformation decree ordinarily reforms an instrument as of the date of the instrument reformed. Also, we recognize that property rights are subject to determination by State laws and therefore within the jurisdiction of the State Courts to declare. However, our issue here is more confined to a particular and narrow situation where the above general rules must give way.
The reformation of instruments is purely an equity remedy and its every application must lead to equitable results. We think that it is both inequitable and beyond the power of a State Court to change retroactively the status of a federal revenue measure with a resulting loss of revenue to the government. As said in Sinopoulo v. Jones, 10 Cir., 154 F.2d 648, at 650:
“The liability of appellant for the income tax chargeable to the income of the trusts for the years in question must be determined from the provisions of the trusts prior to their reformation by the state court. While the judgment of the state court made the reformation of the trusts retroactive and effective as of the date of the execution, this could not affect the rights of the government under its tax laws. It is a general rule that as between parties to an instrument a reformation relates back to the-date of the instrument, but that as to third parties who have acquired rights under the instrument, the reformation is effective only from the date thereof.”
The judgment of the Tax Court is affirmed.
. March 26, 1952, a Claim for Refund in respect to the 1946 tax payment was filed. Final action on this claim has been deferred pending decision in this proceeding now before us.
. For identification and distinction from the three separate deeds formed by the Iowa State Court, the parties have called the original trust deed dated December 31, 1945, the “M. T. Straight Trust”.
. Beckius v. Hahn, 114 Neb. 371, 207 N.W. 515, 44 A.L.R. 73.
. We are strictly confining this opinion and decision^ to the years — 1947 and 1948 — which are the only tax years involved.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
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.
Basil W. SMITH, Jr., Plaintiff-Appellant Cross-Appellee, v. SNAP-ON TOOLS CORPORATION, Defendant-Appellee Cross-Appellant.
No. 86-4943.
United States Court of Appeals, Fifth Circuit.
Dec. 11, 1987.
Rehearing Denied Jan. 12, 1988.
Orma R. Smith, Jr., Smith, Ross & Trapp, Corinth, Miss., for Smith.
L.F. Sams, Jr., W. Scott Collins, Mitchell, McNutt, Bush, LaGrone & Sams, Tupelo, Miss., for Snap-On Tools Corp.
Before CLARK, Chief Judge, GEE, and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
Basil Smith, a resident of Mississippi, made a ratchet by combining parts of two existing tools. Hoping to see his ratchet made available for sale, he brought it to the attention of Snap-On Tools, Inc., a corporation with its principal place of business in Wisconsin, by showing the ratchet to an independent dealer, then submitting a tool suggestion form to corporate headquarters. Snap-On began manufacturing and selling the ratchet without paying any part of the proceeds to Smith. Smith brought a diversity action against Snap-On, claiming that the ratchet was a trade secret, that he submitted the ratchet in confidence to Snap-On, that Snap-On misappropriated the trade secret, and that Snap-On was liable in damages to him for the misappropriation. The district court, applying Wisconsin law, held that Snap-On had misappropriated Smith’s trade secret and awarded Smith damages in the amount of two and one-half percent of Snap-On’s gross sales from the ratchet plus pre-judgment interest. Smith appealed the damage award, seeking to recover Snap-On’s profits rather than a reasonable royalty. Snap-On cross-appealed, contending that the district court erred 1) in holding that the device was a trade secret; 2) in holding that a confidential relationship existed between Smith and Snap-On; 3) in holding that Smith’s claim was not barred by laches or the statute of limitations; 4) in awarding pre-judgment interest; 5) in awarding a reasonable royalty measure of damages for as long as Snap-On manufactured and marketed the tool rather than merely for the period during which Snap-On enjoyed a competitive advantage because it was able to produce the tool before its competitors could duplicate the model they saw on the market. Because the record does not support the finding that there was a confidential relationship between Smith and Snap-On, we reverse.
Wisconsin law prescribes two essential elements in a cause of action for misappropriation of trade secrets: an actual trade secret and a breach of confidence. The essence of the tort of trade secret misappropriation is the inequitable use of the secret. Even when a trade secret exists, a person who learns the secret legitimately, without any duty of confidentiality, is free to use it.
Wisconsin therefore follows trade secrets law as set out in § 757 of the Restatement of Torts. Under the Restatement, “[o]ne who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if ... his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.” As the comment to this provision states, the proprietor of a trade secret may not unilaterally create a confidential relationship without the knowledge or consent of the party to whom he discloses the secret. No particular form of notice is necessary, however; the question is whether the recipient of the information knew or should have known that the disclosure was made in confidence.
Smith concedes that he never explicitly requested that his disclosure to Snap-On be held in confidence. Nonetheless, he argues, Snap-On knew or should have known that the disclosure was confidential. According to Smith, a “special relationship” existed between himself and Snap-On, based on the fact that he, as a relatively unsophisticated individual, submitted his invention to Snap-On, a large corporation. Under the circumstances, Smith contends, the manufacturer should have known that he, as the inventor, expected compensation even if he did not request it.
The district court accepted this argument, and found that Snap-On had clothed its independent dealer, Jackie Clark, to whom the disclosure was actually made, with apparent authority to accept tool submission suggestions from people like Smith. Pointing out the discrepancy in the circumstances of Smith, a mechanic with little education, and Snap-On, a large corporation, the court concluded that a special relationship between Smith and Snap-On existed from the time of the initial disclosure to Clark and that Snap-On knew or should have known that an inventor does not submit his invention to a manufacturer to appropriate without compensating the inventor.
This does not reflect Wisconsin law. The Supreme Court of Wisconsin has held that, when parties are dealing at arm’s length, one party’s disclosure of an alleged trade secret to another does not automatically create a confidential relationship. Although the case in which the Supreme Court of Wisconsin announced this holding involved two corporations, we see no reason to believe that it would have applied a different rule if the inventor had been an individual rather than a corporation.
Under certain circumstances, courts have found liability for misappropriation of trade secrets in cases involving implied confidentiality between an inventor and a manufacturer. When a manufacturer has actively solicited disclosure from an inventor, then made use of the disclosed material, the manufacturer may be liable for use or disclosure of the secret in the absence of any expressed understanding as to confidentiality. In this case, however, Smith disclosed the invention on his own initiative, without any prompting from Snap-On. Alternatively, courts have imposed liability when the disclosing inventor did not specifically request confidentiality from the manufacturer, but did make clear that the disclosure was intended as part of a course of negotiations aimed at creating a licensing agreement or entering into a similar business transaction. These cases are also distinguishable because Smith did not indicate that he wanted any pecuniary recompense for his suggestion. In fact, Smith testified that he did not mention compensation to Jackie Clark because he did not believe Clark was authorized to discuss such matters. When Smith sent Snap-On a tool suggestion report describing the ratchet shortly after the initial disclosure to Clark, he did not in any way indicate that he wanted compensation, and indeed wrote on the suggestion form, “I would like to be able to buy a nice new shiney [sic] one from the Snap-On truck.” In none of his dealings with Snap-On over the next two years did Smith ever request confidentiality or indicate that he expected or desired any commercial arrangement based on his submission of the ratchet suggestion to Snap-On.
In February, 1978, more than two years after Smith showed the ratchet to Clark, Smith’s lawyer sent a letter to the supervisor of Snap-On’s Product Management Division in which he asked that Smith receive compensation. Reliance on confidentiality, however, must exist at the time the disclosure is made. An attempt to establish a special relationship long after an initial disclosure comes too late.
Because there was no confidential relationship between Smith and Snap-On, Snap-On violated no obligation to Smith by manufacturing the ratchet. We therefore REVERSE.
. Corroon & Black-Rutters & Roberts, Inc. v. Hosch, 109 Wis.2d 290, 325 N.W.2d 883, 886 (1982); Abbott Laboratories v. Norse Chemical Corp., 33 Wis.2d 445, 147 N.W.2d 529, 533-34 (1967).
. RTE Corp. v. Coatings, Inc., 84 Wis.2d 105, 267 N.W.2d 226, 231 (1978).
. Id.
. Id.; Abbott Laboratories, 33 Wis.2d 445, 147 N.W.2d at 533-35.
. Restatement of Torts § 757(b) (1939).
. Id. comment j.
. RTE, 84 Wis.2d 105, 267 N.W.2d at 232; Restatement of Torts § 757(b) comment j (1939).
. RTE, 84 Wis.2d 105, 267 N.W.2d at 232.
. Id., 267 N.W.2d at 228.
. Smith v. Dravo Corp., 203 F.2d 369, 372, 376 (7th Cir.1953).
. Id.; Schreyer v. Casco Prods. Corp., 190 F.2d 921, 924 (2d Cir.1951), cert. denied, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952); Hoeltke v. C.M. Kemp Mfg. Co., 80 F.2d 912, 922-23 (4th Cir.1935), cert. denied, 298 U.S. 673, 56 S.Ct. 938, 80 L.Ed. 1395 (1936).
. RTE, 84 Wis.2d 105, 267 N.W.2d at 233.
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_respond2_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 second 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.
HEYWOOD-WAKEFIELD CO. v. SMALL et al.
No. 3312.
Circuit Court of Appeals, First Circuit.
April 14, 1938.
Herbert A. Baker, of Boston, Mass. (Alan B. Bagley, of Boston, Mass., on the brief), for appellant.
Herbert W. Kenway, of Boston, Mass. (James H. Baldwin and Paul K. Connolly, both of Boston, Mass., on the brief), for appellee Small.
Edgar H. Kent, of Boston, Mass. (Harrison F. Lyman and Fish, Richardson & Neave, all of Boston, Mass., on the brief), for appellee Coach & Car Equipment Corporation.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge
(after stating the facts as above),
The principal question raised by the defendant’s motion to vacate the interlocutory injunction and to dismiss the case is whether the plaintiff, Small, and the Coach & Car Equipment ■ Corporation, the intervening plaintiff, can maintain this suit for infringement. The determination of this question depends upon at least two of three subsidiary questions: (1) Whether the Coach & Car Equipment Corporation acquired a valid title to the patent under the so-called license contract of December 15, 1935, so that it would be entitled to damages for the defendant’s infringement of the patent after that date; and, if it did, (2) whether Small-acquired title to the patent when it issued to him on October 6, 1931, and can maintain this suit for damages for the defendant’s infringement of the patent after that date and down to December 15, 1935, when the Coach & Car Equipment Corporation acquired title to the patent; and (3) if the Coach & Car Equipment Corporation did not acquire title to the patent, then whether he can maintain the suit for damages for the entire period of the defendant’s infringement.
As to the question whether the Coach & Car Equipment Corporation acquired a valid title under the so-called license contract, it appears that on December 15, 1935, the date of that contract, Small had, at least, the apparent legal title to the patent; that it had issued to him from the Patent Office in his name; that the records in the Patent Office disclosed no record of an assignment of the patent from him; and that the Coach & Car Equipment Corporation paid him a substantial consideration, in good faith and without knowledge or notice, constructive or otherwise, of any defect in his title. Burck v. Taylor, 152 U.S. 634, 653, 14 S.Ct. 696, 38 L.Ed. 578; In re Atlantic Beach Corp., D.C., 244 Fed. 828; Dunn v. New York, 205 N.Y. 342, 98 N.E. 495; United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 333, 26 S.Ct. 282, 50 L.Ed. 499; 46 C.J. p. 550, § 46; 20 Ruling Case Law, p. 342, § 3. These facts being established, and we think they are, the legal title to the patent became vested in the Coach & Car Equipment Corporation, if the so-called license contract was an assignment within the meaning of the patent law.
In that contract Small granted to the Coach & Car Equipment Corporation the exclusive right under the patent to make, use, and vend the invention during the entire term of the patent; and, as the grant to the patentee was the right to make, use, and vend the invention throughout the United States and the territories thereof, the exclusive right under the patent not being limited in the grant to any particular portion of the United States, and the grant being of the entire monopoly, the so-called license contract was an assignment and not a license, and vested the title to the entire patent in the Coach & Car Equipment Corporation. This being so, the corporation, having been allowed to intervene as a party plaintiff, may recover of the defendant such damages as it sustained from the date of its acquisition of the title to the patent (December 15, 1935) until the defendant ceased its infringement, sub j ect to payments to Small as hereafter defined. Waterman v. Mackenzie, 138 U.S. 252, 255, 11 S.Ct. 334, 34 L.Ed. 923; Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 37, 38, 43 S.Ct. 254, 257, 67 L.Ed. 516; Krentler-Arnold Hinge Last Co. v. Leman, 1 Cir., 13 F.2d 796, 799, 802; Littlefield v. Perry, 21 Wall. 205, 220, 22 L.Ed. 577. In the last two cases the consideration for the license or assignment was an agreement to pay royalties.
As to whether Small acquired such a title to the patent when it issued to him on October 6, 1931, that he can maintain this suit for damages for the defendant’s infringement from that date to December 15, when the Coach & Car Equipment Corporation acquired title, it appears that Small was the inventor of the car-seat base; that he duly applied for a patent for his invention; and that the records in the Patent Office disclose no record of an assignment of his application before the patent issued to him or at any time. Under such circumstances, the statutes regulating the issuing of patents, Rev.St. §§ 4883, 4884, 4895, 4896, 4898 and 4897, as amended, 35 U.S.C.A. §§ 39, 40, 44, 46, 47, and § 38, are held to require that the patent issue to the inventor, the patentee, and that he takes the legal title to the patent when issued. But that, where the inventor assigns his application in writing and records the same, and the patent later issues to the patentee, the title to the patent vests in the assignee, without a further assignment. Gayler v. Wilder, 10 How. 477, 481, 491, 492, 493, 13 L.Ed. 504. And that, if no record of the assignment is made until after the patent issues, the title to the patent does not vest in the assignee until after the assignment is recorded. United States Stamping Co. v. Jewett, C.C., 7 F. 869, 877, 878.
In Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, at page 40, 43 S.Ct. 254, 258, 67 L.Ed. 516, Chief Justice Taft, in delivering the opinion of the court, said:
“Patent property is the creature of statute law and its incidents are equally so and depend upon the construction to be given to the statutes creating it and them, in view of the policy of Congress in their enactment. This is shown by the opinion of this Court in Waterman v. Mackenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923, already cited, and in the line of authorities followed therein. It is not safe, therefore, in dealing with a transfer of rights under the patent law to follow implicitly the rules governing a transfer of rights in a chose in action at common law. As Chief Justice Taney said in Gayler v. Wilder, 10 How. 477, 494 (13 L.Ed. 504) : ‘The monopoly did not exist at common law, and the rights, therefore, which may be exercised under it cannot be regulated by the rules of the common law. It is created by the act of Congress; and no rights can be acquired in it unless authorized by statute, and in the manner the statute prescribes.’ ”
In Gayler v. Wilder, 10 How. 477, 481, 491, 492, 493, 13 L.Ed. 504, a written assignment was made and recorded in the Patent Office before the patent issued and contained a request that the patent issue to the assignee. It was issued to the patentee. The defendant contended that the. assignment did not convey to the assignee the legal title to the monopoly subsequently conferred by the patent. The court, in that case, among other things, said:
“The act of 1836 declares that every patent shall be assignable in law, and that the assignment must be in writing, and recorded within the time specified. But the thing to be assigned * * * is the monopoly which the grant [the patent] confers: the right of property which it creates. And when the party has acquired an inchoate right to it, and the power to make that right perfect and absolute' at his pleasure, the assignment of his whole interest, whether executed before or after the patent issued, is equally within the provisions of the act of Congress.”
And held: “that, when the patent issued to him [the patentee], the legal right to the monopoly and property it created was, by operation of the assignment then on record, vested in Enos Wilder [the assignee].”
. In United States Stamping Co. v. Jewett, C.C., 7 F. 869, 877, 878, it appeared that the inventor filed his application for a patent June 3, 1871; that on July 20, 1871, he made an assignment of it to Heath & Smith Manufacturing Company; that the patent issued October 10, 1871, but the assignment was not recorded until November 18, 1871. And Judge Blatchford, then a circuit judge, but later a justice of the Supreme Court, held that the title to the patent did not vest in the assignee, the Heath & Smith Manufacturing Company, on the issuing of the patent, but only after the assignment had been recorded.
These cases demonstrate that, under the patent statutes regulating the assignment of an application for a patent, the recording of the assignment in the Patent Office is made one of the essential requirements of the assignment to vest the title to the patent in the assignee.
When the patent issued to Small, there being no record in the Patent Office of his voluntary assignment in bankruptcy, the estate being closed and no trustee in existence in whom the title to the patent could vest, Small took the legal title and ownership of the patent, charged with an equitable lien, or in trust, by virtue of section 70 of the Bankruptcy Act, as amended, by Act May 27, 1926, 11 U.S.C.A. § 110, and otherwise, to satisfy the claims of creditors who had proved them and to pay the expenses of administering the bankruptcy estate, with the right to hold any balance, for himself. He did not take the title as a mere conduit to pass it on to the trustee in bankruptcy, for there was no trustee in existence. Furthermore, if the recording of the voluntary assignment be regarded as nonessential to the vesting of the title in an assignee, as there was here no assignee or trustee in existence when the patent issued in whom the legal'title could vest, and the bankrupt estate was closed, equity, like nature, abhorring a vacuum, leaves the legal title in Small where it finds it, charged with an equitable lien, or in trust, for the purposes above stated.
In Mills Novelty Co. v. Monarch Tool & Mfg. Co., 6 Cir., 49 F.2d 28, the situation was much the same as in the case now before us, so far as concerns the transfer of title to an application for a patent by an assignment in bankruptcy, except that the assignment in that case was an involuntary and not a voluntary one. There it appeared that Schoen and Lesley had made an invention and filed a joint application for a patent on December 16, 1910; that on April 14, 1915, and before the patent issued, Schoen was adjudged an involuntary bankrupt, and filed his schedule of personal property assets, in which, under the heading “Patents, Copyrights and Trademarks, etc.,” he said: “None”; that within a year after adjudication (before April 14, 1916), the bankruptcy proceedings were closed, and the court assumed as a fact that at about the same ■time the trustee was discharged; that, thereafter, on September 19, 1916, the patent issued jointly to Schoen and Lesley; that in 1926, the patentees brought suit against the defendant' for infringement; "that in 1929, and after the suit had been pending for three years, Schoen and Lesley ■sold the patent to the plaintiff, the Mills Novelty Company, presumably with all their rights to damages; and that this company became the plaintiff in the suit by supplemental bill.
It was held that the plaintiff, which had purchased the title of Schoen and Lesley to the patent for a valuable consideration, in good faith, and without notice of any defect, had acquired a good title and could maintain the suit for infringement and accounting. It is there pointed out that if the title to Schoen’s one-half undivided interest in the patent application was in the trustee without his knowledge, upon the closing of the estate and his discharge it could not remain in him for “he is dead,” and it did not remain in the bankruptcy court; that the theory most reasonable for solving the situation was “that the failure to schedule or otherwise give notice to the trustee would extend the reasonable time within which he or those entitled to do so might elect whether the title should be taken over for the benefit of the bankrupt estate”; that if the right of election survived, the creditors might, within a reasonable time, apply to reopen the estate and demand the property; that such reasonable time would start to run when they were chargeable with notice that the patent application existed at the time of the bankruptcy proceedings; that the record made in the Patent Office, at the time the'patent issued, showing that, during the bankruptcy proceedings there was a pending application, was notice to the whole public, including the creditors; that if the creditors, within a reasonable time after such notice, failed to proceed to get control of the patent, the title would remain where it was, that is, in Schoen and Lesley, the copatentees; that a delay of thirteen years, if unexplained, would be unreasonable; and that “the suggestion that there might .be some possible outside interest is one which a court of equity ought not to accept from a mere trespasser for the sake of enabling the trespasser to avoid the results of his unlawful action.” In other words, that the defendant’s suggestion of the possible existence of an enforcible right in the creditors, equitable or otherwise, he being a trespasser, was not sufficient to interrupt the prosecution of a suit at his request and for his benefit.
Although that case arose prior to the amendment of section 70 in 1926, 11 U.S.C. A. § 110 and note, the assumption upon which the decision was based — that the title to Schoen’s one-half common interest in the application was in the trustee without his knowledge up until the closing of the estate — is as broad and comprehensive, as any right or title would be that is conferred upon a trustee by the amendment of 1926. The amendment of section 70, 11 U.S.C.A. § 110, vesting in the trustee the title of the bankrupt to an application for a patent, is but a restatement of the law as it existed prior to the amendment, for at common law the inventor had a property right in his invention and, on filing an application, he had, under the patent statutes, the inchoate right to the monopoly to be granted; and there can be little if any doubt but that a property right in an application passed to the trustee in bankruptcy prior to the amendment of 1926.
Without further discussion of this branch of the case we are of the opinion that the title to the patent, from its issuance to the patentee down to the assignment to the Coach & Car Equipment Corporation, was in Small, charged with an equitable lien or held in trust for the benefit of creditors who had proved their claims, provided they asserted their rights within a reasonable time after being charged with notice of the pendency of the application.
It necessarily follows from what has been said that Small not only had the right, but that it was his duty to protect the property in the patent, the legal title to which was in him, by bringing this suit for damages and injunction against the defendant. The Coach & Car Equipment Corporation, however, having acquired the legal title to the patent in 1935, was properly allowed to intervene as a plaintiff in the case and recover the damages occasioned by the defendant’s infringement, since it acquired title to the patent, free from any claim of the creditors; but having intervened in and availed itself of the benefits arising from Small’s prosecution of the suit, it is subject to certain rights of his hereafter mentioned. And Small, being the owner of the title down to that time, during which period the defendant also infringed the patent, may recover the damages thus occasioned (Moore v. Marsh, 7 Wall. 515, 19 L.Ed. 37; Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, at pages 41, 42, 43 S.Ct. 254, 258, 67 L.Ed. 516; Krentler-Arnold Hinge Last Co. v. Leman, 1 Cir., 13 F.2d 796, at page 803), subject to the right of a legally appointed new trustee (6 Remington on Bankruptcy, p. 448, § 2980; 1 Collier on Bankruptcy, p. 172, 1923 Ed.), to appear in the cause and establish whatever rights creditors, who have duly proved their claims (6 Remington, § 2984), may have in the fund recovered by Small, provided he can show that such creditors, by their delay for more than six years after they were charged with notice of the Patent Office record, have not unreasonably delayed in the assertion of their claims. Their right to intervene in this case is, under the facts here disclosed, necessarily limited to the satisfaction of their claims out of those damages, the title to the patent being now in the Coach & Car Equipment Corporation. We think it is clear that the reopening of a closed case in bankruptcy rests in the sound judicial discretion of the District Judge and an application for that purpose should be made to him and not to the referee to whom the case was originally re-, ferred; that the latter’s authority under the original order of reference ceased after he made his report and the case was closed; and that if the District Judge orders the case reopened, he should also enter an order re-referring the case.to a referee, who should call a new meeting of the creditors for the appointment of a new trustee. In re Rochester Sanitarium & Baths Co., 2 Cir., 222 F. 22, 23, 26, 27; In re Newton, 8 Cir., 107 F. 429, 431; 6 Remington, § 2980; 1 Collier, p. 172.
It is contended by the defendant that section 70 of the Bankruptcy Act, as amended in 1926, 11 U.S.C.A. § 110, required Small to include his application for a patent as an asset in his list of assets. But that section neither before nor after its amendment required the inclusion of an application as an asset in the list of assets, and the forms prescribed by the Supreme Court for listing assets, neither befóte, nor after the amendment, contained a designation calling for the listing of an application as an asset. But section 7, subd. 8, as amended, 11 U.S. C.A. § 25(8), required the bankrupt to file a.schedule of his property, and if an application for a patent is property, which we think it is, it being capable of being assigned and will survive to the applicant’s executor or administrator, the forms, for listing assets properly should be changed to- in-' elude such an asset. If this were done it would avoid misleading.
The defendant further contends that Small was guilty of fraud in not listing the application as an asset, although the forms did not require it. It is difficult to see how the defendant can raise the question; and if a legally appointed new trustee might do so, we think that, under the facts here existing, it could avail him nothing over and above what he is otherwise authorized to assert, for the legal title to the patent is the property of the Coach & Car Equipment Corporation, and the only assets involved in this suit in which he could assert a right by being allowed to intervene are the damages Small may recover. If the omission to list was fraudulent as to his creditors, it can avail the defendant nothing. Being such it would not confer upon the defendant the right to damage property the title to which was in Small, nor to defeat an action brought against it for damages, in which Small’s creditors have an equity, if they have not lost it through unreasonable delay.
We think, however, that the permanent injunction issued in this case went too far; that under the so-called license or assignment, granting the exclusive right to manufacture, use, and sell, the Coach & Car Equipment Corporation may employ anyone it sees fit to manufacture the patented article or to use or sell it, and that, while it could not, under a nontransferable contract, such as exists here, grant a sublicense to anyone, it had a right to employ the defendant to manufacture the revolving car-seat bases under the Small patent and to sell them, the Coach & Car Equipment Corporation to account to the assignor for all royalties, whether the articles were manufactured, sold, or used by it or by its agent. The injunction issued by the 'District Court must be modified in this respect.
Equity requires that the suit against the defendant should be retained for the assessment of damages; that the so-called license or assignment to the Coach & Car Equipment Corporation should stand as valid and binding; that any damages recovered against the defendant since the date of the execution of the assignment or license contract, after adjustment between the assignor and assignee of the expenses of the suit, be for the benefit of the Coach & Car Equipment Corporation; and that the damages resulting from the infringement of the patent prior to the assignment to the Coach & Car Equipment Corporation be Small’s, subject to any claim a legally appointed new trustee may be able to establish in this suit for the benefit of the creditors, if he desires to intervene and establish a right in them.
The denial of the District Court of the motion of the defendant to vacate the interlocutory decree is affirmed, but the permanent injunction must be modified to conform to this opinion.
The case is remanded to the District Court for further proceedings not inconsistent with this opinion, with costs to the plaintiffs-appellees in this court.
Question: This question concerns the second 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:
|
sc_respondent
|
027
|
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.
ARKANSAS GAME AND FISH COMMISSION v. UNITED STATES
No. 11-597.
Argued October 3, 2012
Decided December 4, 2012
Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, J., who took no part in the consideration or decision of the ease.
James F. Goodhart argued the cause for petitioner. With him on the briefs were Julie DeWoody Greathouse, Matthew N. Miller, Kimberly D. Logue, and John P. Marks.
Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Moreno, Ben jamin J. Horwich, William, B. Lazarus, Katherine J. Barton, Robert J. Lundman, and Earl H. Stockdale, Jr.
Briefs of amici curiae urging reversal were filed for the National Federation of Independent Business Small Business Legal Center et al. by Karen R. Harned, Christopher M. Whitcomb, Thomas J. Ward, Amy C. Chai, Ellen Steen, Scott Horngren, John C. Eastman, and Anthony T. Caso; for the Owners’ Counsel of America by Robert H. Thomas; for the Pacific Legal Foundation et al. by R. S. Radford, Brian T Hodges, Ilya Shapiro, and Martin S. Kaufman; for the Washington Legal Foundation et al. by Richard A. Samp; and for the Wolfsen Land and Cattle Co. et al. by Nancie G. Marzulla and Roger Marzulla.
Briefs of amici curiae urging affirmance were filed for the International Municipal Lawyers Association et al. by John D. Echeverría; and for Professors of Law Teaching in the Property Law and Water Rights Fields by Robert H. Abrams, pro se.
Justice Ginsburg
delivered the opinion of the Court.
Periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission’s property. The Commission sought compensation from the United States pursuant to the Fifth Amendment’s instruction: “[N]or shall private property be taken for public use, without just compensation.” The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, although repetitive, are temporary.
Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a permanent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.
I
A
The Commission owns the Dave Donaldson Black River Wildlife Management Area (Management Area or Area), which comprises 23,000 acres along both banks of the Black River in northeast Arkansas. The Management Area is forested with multiple hardwood timber species that support a variety of wildlife habitats. The Commission operates the Management Area as a wildlife and hunting preserve, and also uses it as a timber resource, conducting regular harvests of timber as part of its forest-management efforts. Three types of hardwood oak species—nuttall, overcup, and willow—account for 80 percent of the trees in the Management Area. The presence of these hardwood oaks is essential to the Area’s character as a habitat for migratory birds and as a venue for recreation and hunting.
The Clearwater Dam (Dam) is located 115 miles upstream from the Management Area. The Corps constructed the Dam in 1948, and shortly thereafter adopted a plan known as the Water Control Manual (Manual) to determine the rates at which water would be released from the Dam. The Manual sets seasonally varying release rates, but permits planned deviations from the prescribed rates for agricultural, recreational, and other purposes.
In 1993, the Corps approved a planned deviation in response to requests from farmers. From September to December 1993, the Corps released water from the Dam at a slower rate than usual, providing downstream farmers with a longer harvest time. As a result, more water than usual accumulated in Clearwater Lake behind the Dam. To reduce the accumulation, the Corps extended the period in which a high amount of water would be released. The Commission maintained this extension yielded downstream flooding in the Management Area, above historical norms, during the tree-growing season, which runs from April to October. If the Corps had released the water more rapidly in the fall of 1993, in accordance with the Manual and with past practice, there would have been short-term waves of flooding which would have receded quickly. The lower rate of release in the fall, however, extended the period of flooding well into the following spring and summer. While the deviation benefited farmers, it interfered with the Management Area’s tree-growing season.
The Corps adopted similar deviations each year from 1994 through 2000. The record indicates that the decision to deviate from the Manual was made independently in each year and that the amount of deviation varied over the span of years. Nevertheless, the result was an unbroken string of annual deviations from the Manual. Each deviation lowered the rate at which water was released during the fall, which necessitated extension of the release period into the following spring and summer. During this span of years the Corps proposed Manual revisions that would have made its temporary deviations part of the permanent water-release plan. On multiple occasions between 1993 and 2000, the Commission objected to the temporary deviations and opposed any permanent revision to the Manual, on the ground that the departures from the traditional water-release plan adversely impacted the Management Area. Ultimately, the Corps tested the effect of the deviations on the Management Area. It thereupon abandoned the proposal to permanently revise the Manual and, in 2001, ceased its temporary deviations.
B
In 2005, the Commission filed the instant lawsuit against the United States, claiming that the temporary deviations from the Manual constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding of its land during the tree-growing season. The cumulative impact of this flooding over a six-year period between 1993 and 1999, the Commission alleged, resulted in the destruction of timber in the Management Area and a substantial change in the character of the terrain, which necessitated costly reclamation measures. Following a trial, the Court of Federal Claims ruled in favor of the Commission and issued an opinion and order containing detailed findings of fact. 87 Fed. Cl. 594 (2009).
The Court of Federal Claims found that the forests in the Management Area were healthy and flourishing before the flooding that occurred in the 1990⅛, and that the forests had been sustainably managed for decades under the water-release plan contained in the Manual. Id., at 631. It further found that the Commission repeatedly objected to the deviations from the Manual and alerted the Corps to the detrimental effect the longer period of flooding would have on the hardwood timber in the Management Area. Id., at 604.
As found by the Court of Federal Claims, the flooding caused by the deviations contrasted markedly with historical flooding patterns. Between 1949 and 1992, the river level near the Management Area reached six feet an average of 64.7 days per year during the growing season; the number of such days had been even lower on average before the Clearwater Dam was built. Between 1993 and 1999, however, the river reached the same level an average of 91.14 days per year, an increase of more than 40 percent over the historic average. Although the Management Area lies in a flood plain, in no previously recorded timespan did comparable flooding patterns occur. Id., at 607-608. Evidence at trial indicated that half of the nuttall oaks in the Management Area were saturated with water when the river level was at six feet, id., at 608; the evidence further indicated that the saturation of the soil around the trees’ root systems could persist for weeks even after the flooding had receded, id., at 627.
The court concluded that the Corps’ deviations caused six consecutive years of substantially increased flooding, which constituted an appropriation of the Commission’s property, albeit a temporary rather than a permanent one. Important to this conclusion, the court emphasized the deviations’ cumulative effect. The trees were subject to prolonged periods of flooding year after year, which reduced the oxygen level in the soil and considerably weakened the trees’ root systems. The repeated annual flooding for six years altered the character of the property to a much greater extent than would have been shown if the harm caused by one year of flooding were simply multiplied by six. When a moderate drought occurred in 1999 and 2000, the trees did not have the root systems necessary to sustain themselves; the result, in the court’s words, was “catastrophic mortality.” Id., at 632. More than 18 million board feet of timber were destroyed or degraded. Id., at 638-640.
This damage altered the character of the Management Area. The destruction of the trees led to the invasion of undesirable plant species, making natural regeneration of the forests improbable in the absence of reclamation efforts. Id., at 643. To determine the measure of just compensation, the Court of Federal Claims calculated the value of the lost timber and the projected cost of the reclamation and awarded the Commission $5.7 million.
The Federal Circuit reversed. It acknowledged that in general, temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. But it held that “cases involving flooding and [flowage] easements are different.” 637 F. 3d, at 1374. Government-induced flooding can give rise to a takings claim, the Federal Circuit concluded, only if the flooding is “permanent or inevitably recurring.” Id., at 1378. The Court of Appeals understood this conclusion to be dictated by this Court’s decisions in Sanguinetti v. United States, 264 U. S. 146, 150 (1924), and United States v. Cress, 243 U. S. 316, 328 (1917). We granted certiorari to resolve the question whether government actions that cause repeated floodings must be permanent or inevitably recurring to constitute a taking of property. 566 U. S. 920 (2012).
I—t H-i
The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960). See also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318-319 (1987); Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123-125 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 322 (2002) (citing United States v. Pewee Coal Co., 341 U. S. 114, 115 (1951)). These guides are fundamental in our Takings Clause jurisprudence. We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.
True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Man hattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim.
The Court first ruled that government-induced flooding can constitute a taking in Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). The Wisconsin Legislature had authorized the defendant to build a dam which led to the creation of a lake, permanently submerging the plaintiff’s land. The defendant argued that the land had not been taken because the government did not exercise the right of eminent domain to acquire title to the affected property. Moreover, the defendant urged, the damage was merely “a consequential result” of the dam’s construction near the plaintiff’s property. Id., at 177. Rejecting that crabbed reading of the Takings Clause, the Court held that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material ... so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181.
Following Pumpelly, the Court recognized that seasonally recurring flooding could constitute a taking. United States v. Cress, 243 U. S. 316 (1917), involved the Government’s construction of a lock and dam, which subjected the plaintiff’s land to “intermittent but inevitably recurring overflows.” Id., at 328. The Court held that the regularly recurring flooding gave rise to a takings claim no less valid than the claim of an owner whose land was continuously kept under water. Id., at 328-329.
Furthermore, our decisions confirm that takings temporary in duration can be compensable. This principle was solidly established in the World War II era, when “[cjondem-nation for indefinite periods of occupancy [took hold as] a practical response to the uncertainties of the Government’s needs in wartime.” United States v. Westinghouse Elec. & Mfg. Co., 339 U. S. 261, 267 (1950). In support of the war effort, the Government took temporary possession of many properties. These exercises of government authority, the Court recognized, qualified as compensable temporary takings. See Pewee Coal Co., 341 U. S. 114; Kimball Laundry Co. v. United States, 338 U. S. 1 (1949); United States v. General Motors Corp., 323 U. S. 373 (1945). Notably in relation to the question before us, the takings claims approved in these cases were not confined to instances in which the Government took outright physical possession of the property involved. A temporary takings claim could be maintained as well when government action occurring outside the property gave rise to “a direct and immediate interference with the enjoyment and use of the land.” United States v. Causby, 328 U. S. 256, 266 (1946) (frequent overflights from a nearby airport resulted in a taking, for the flights deprived the property owner of the customary use of his property as a chicken farm); cf. United States v. Dickinson, 331 U. S. 745, 751 (1947) (flooding of claimant’s land was a taking even though claimant successfully “reclaimed most of his land which the Government originally took by flooding”).
Ever since, we have rejected the argument that government action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” First English, 482 U. S., at 321. See also Tahoe-Sierra, 535 U. S., at 337 (“[W]e do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.”).
Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.
HH í—I
In advocating a temporary-flooding exception, the Government relies primarily on Sanguinetti, 264 U. S. 146. That case involved a canal constructed by the Government connecting a slough and a river. The claimant’s land was positioned between the slough and the river above the canal. The year after the canal’s construction, a “flood of unprecedented severity” caused the canal to overflow onto the claimant’s land; less severe flooding and overflow occurred in later years. Id., at 147.
The Court held there was no taking on these facts. This outcome rested on settled principles of foreseeability and causation. The Court emphasized that the Government did not intend to flood the land or have “any reason to expect that such [a] result would follow” from construction of the canal. Id., at 148. Moreover, the property was subject to seasonal flooding prior to the construction of the canal, and the landowner failed to show a causal connection between the canal and the increased flooding, which may well have been occasioned by changes in weather patterns. See id., at 149 (characterizing the causal relationship asserted by the landowner as “purely conjectural”). These case-specific features were more than sufficient to dispose of the property owner’s claim.
In the course of the Sanguinetti decision, however, the Court summarized prior flooding cases as standing for the proposition that “in order to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land.” Ibid. The Government would have us extract from this statement a definitive rule that there can be no temporary taking caused by floods.
We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti. That case, we note, was decided in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.
There is certainly no suggestion in Sanguinetti that flooding cases should be set apart from the mine run of takings claims. The sentence in question was composed to summarize the flooding cases the Court had encountered up to that
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_partywinning
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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 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.
EX PARTE FAHEY, FEDERAL HOME LOAN BANK COMMISSIONER, et al.
No. 133, Misc.
Argued April 30, 1947.
Decided June 23, 1947.
Oscar H. Davis argued the cause for petitioners. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Robert L. Stern, Paul A. Sweeney, Kenneth G. Heisler, Ray E. Dougherty and Mose Silverman.
Charles K. Chapman and Welburn Maycock argued the cause for Hall, United States District Judge. With Mr. Chapman on the brief were Peirson M. Hall, Wyckojj Westover and Harry 0. Wallace.
Mr. Justice Jackson
delivered the opinion of the Court.
This petition by John H. Fahey, individually and as Federal Home Loan Bank Commissioner, and A. V. Ammann, individually and as Conservator for the Long Beach Federal Savings and Loan Association, invokes the original jurisdiction of this Court. They ask leave to file petition for a writ of “mandamus and/or prohibition and/or injunction” against Judge Peirson M. Hall of the United States District Court for the Southern District of California to vacate his order allowing fees to counsel in Fahey v. Mallonee, decided today, ante, p. 245, to prohibit any further allowance therein, and to enjoin any payments heretofore allowed.
While an appeal in the principal case was pending in this Court, application was made by various counsel for the plaintiffs and associated interests therein for allowance of fees aggregating some $125,000. The District Court allowed counsel for plaintiffs $50,000 as a partial payment on account of services, but withheld action on other applications. Certain costs and expenses of the plaintiffs in the amount of $17,295.13 were also ordered reimbursed.
The petition involves serious questions of law and of fact. Whether, because of the pendency of the appeal and the stay order granted therein, the District Court had power to entertain the application, whether before the final outcome of the case could be known an allowance was premature, whether the source of the fund on deposit with the court was so related to the services as to be subject to disbursement for their compensation, and whether one judge can make allowances in a case before a three-judge court, are, with other questions, much contested. We do not decide any question as to the merits.
Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as substitutes for appeals. As extraordinary remedies, they are reserved for really extraordinary causes.
We find nothing in this case to warrant their use. An allowance of $50,000 will hardly destroy a twenty-six-million-dollar association during the time it would take to prosecute an appeal. The status of one of the applicants in the principal case is now settled so that he has standing to take all authorized appeals. We hold that the applicants’ grievance is one to be pursued by appeal at the proper time and to the appropriate court, rather than by resort to our original jurisdiction for extraordinary writs.
The petition is
Denied.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_denovo
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the standard of review, "de novo on facts" support the government?" The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court. 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".
Antoinette BORNHOLDT et al., Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, et al., Appellees.
No. 18535.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1964.
LeRoy A. Broun and Bernard M. King, Fremont, Cal., for appellant.
Randolph Karr and Roy Jerome, San Francisco, Cal., for appellee.
Before POPE, MERRILL and KOELSCH, Circuit Judges.
KOELSCH, Circuit Judge.
This is a diversity action removed from the Superior Court of Contra Costa County, California to the Federal District Court, pursuant to 28 U.S.C. § 1332. Jurisdiction of the appeal is based on 28 U.S.C. §§ 1291, 1294(1).
Plaintiffs, heirs of the original owners of certain real property in the Walnut Creek area of California, seek declaratory relief quieting title against defendant Southern Pacific Company to all or a portion of the property at issue. In the alternative, plaintiffs ask damages for an alleged inverse condemnation.
Uncontroverted evidence adduced at trial by the judge, sitting without jury, shows defendant Railroad acquired the disputed property by deed dated August 6, 1890 from plaintiff’s predecessors in interest. The property consists of a 100-foot strip of land immediately adjacent to the defendant’s right-of-way known as the San Ramon Branch Line. Containing approximately 4.04 acres, this strip was acquired as a location for a railroad station. Defendant, shortly after acquisition, erected and has operated a station on this strip for well over half a century. Since the entire parcel was not required for station purposes the defendant granted leases to unused portions of the property from time to time. These leases in no way obstructed or interfered with operations of the railroad. On September 23, 1952 defendant leased 1.139 acres of the disputed parcel to McDonald Products Co. for a term of five years. The lease contained no provisions for its earlier termination. Use of the leased premises was confined to parking lot purposes. The Emporium Capwell Company is presently in possession by virtue of an assignment.
Fundamental to our consideration is a proviso in the conveyance which reads in pertinent part: “Provided that if ever party of the second part, or its successors, shall cease to occupy said premises for railroad purposes, then all of the right, title and interest herein conveyed shall revert to parties of the first part, their heirs or assigns.”
The trial court found that, despite the lease, the property has always been devoted to railroad purposes and will continue to be so used. It further found that the forfeiture provision contained in the deed was intended to secure the benefit of accessible rail service to the surrounding property retained by grantors. Other evidence established and the trial court found that the land was needed for future expansion of the railroad after expiration of the five year lease. The court below then concluded there had been no breach of the forfeiture provision.
Presented for decision is the question whether this non-terminable five year lease of a fractional portion of the original grant, which neither interfered with existing operations nor barred projected railroad expansion, constituted cessation of occupation of the property for railroad purposes so as to bring the forfeiture provision of the deed into operation.
A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. Cal.Civ.Code § 1442. Forfeitures are not favored so we must construe liberally in favor of the holder of the estate and strictly against forfeiture. Behlow v. Southern Pacific R. R., 130 Cal. 16, 62 P. 295 (1900). Where there are two possible constructions, one of which leads to a forfeiture and the other avoids it, the rule of law is well settled, both in the interpretation of ordinary contracts and instruments transferring property, that the construction which avoids forfeiture must be made if it is at all possible. Ballard v. MacCallum, 15 Cal.2d 439, 441, 101 P.2d 692, 695 (1940); Brant v. Bigler, 92 Cal.App.2d 730, 208 P.2d 47 (1949). These controlling principles bespeak a general legislative and judicial hostility to divesture of properties long held by grantees. Various grounds are ascribed to defeat divesture in the cases. Some find a waiver, often with few facts indicative of an intentional relinquishment of the right. Others declare flatly that no breach has occurred. Candor compels our confession that these cases appear to involve breaches but breaches best described as de minimis or merely technical in nature and therefore insufficient to revert the estate.
We believe the facts demonstrate substantial compliance with the deed condition under consideration. The trial court found the condition was inserted in the deed to secure benefits for the surrounding lands which were then still retained by the grantor. A need of the property for future railroad expansion after the term of the lease was also found by the court. Comporting ourselves to the mandate of Rule 52, F.R.Civ.P. we are unable to say such findings are clearly erroneous. No one disputes that the major portion ■of this property has been used for railroad purposes for well over threescore .years. Plans produced at trial which were drafted before any threat of suit indicate defendant will continue and extend this use. In short, the foregoing circumstances show sufficient compliance with the deed condition.
Appellants contend that the doctrine of partial reversion, recognized in Tamalpais Land and Water Co. v. Northwestern Pac. R. R. Co., 73 Cal.App.2d 917, 167 P.2d 825 (1946), should be applied here. Our opinion, while not wholly •consistent with the doctrine, is not in fatal collision with it, inasmuch as our •case is distinguishable on its facts. In Tamalpais, the railroad had initially used "but later withdrew from the disputed portion. Abandonment was indicated because the railroad tore up and removed its tracks. No plans for future use of the premises by the railroad were shown. In the case at bar the defendant railroad has never used the disputed portion but rather has leased it periodically. It has never leased the disputed portion for so long a period as to make it unavailable for projected or anticipated needs. On the contrary, the railroad intends to (Utilize the contested parcel after the termination of the lease. The doctrine of partial reversion is based on the court’s desire to avoid forfeiture whenever possible and should only be applied when no other means of avoiding a forfeiture are possible. Quatman v. McCray, 128 Cal. 285, 60 P. 855 (1900); See Cal.Jur.2d, Covenants, Conditions and Restrictions § 77 at 86 (1954). The facts before us do not indicate this is a proper case for its application.
Under the view we take of the case, it is unnecessary to intimate any position on alternative grounds of affirmance set forth in the opinion of the District Court.
Affirmed.
. The suit was removed prior to the amendment of § 1332 in 1958.
. Examination of prior leases reveals each has provision for termination on short notice. Plaintiffs concede that such provision puts a lease for any purpose and for whatever period within the deed requirement. They therefore ceased dispute at trial as to a second parcel, not in contention here, that had such a provision. Apparently due to this concession, defendant no longer urged in the trial court that the deed requirement had been waived by virtue of plaintiffs’ acquiescence in the prior leases.
. This puts the case in its strongest posture for plaintiffs. In the court below defendant contended that General Order No. 69 of the California Public Utilities Commission made the lease terminable on short notice. By its express terms, said order applies to easements, licenses and permits. We do not believe that leases fall within its embrace. However, under the view we take of the case, it is unnecessary to extensively discuss the merits of this contention.
. The trial court therefore concluded that, because plaintiffs retained no interest in surrounding property, they lack standing to bring this action. Authority for that position is found in 19 Am.Jur. Estates § 91 at 553 (1939) where it is said:
“Where one conveys part of his land on condition subsequent that something be done which will benefit the rest of his property, a conveyance of the rest of his property is a waiver of the grantor’s right to declare a forfeiture for breach of the condition subsequent.”
Investigation of the primary authority claimed to support the text statement reveals no such rule. Merrifield v. Cobleigh, 58 Mass. (4 Cush.) 178 (1849) rested its decision on the ground that the plaintiff there had made no prior demand on the defendant so as to put him in default in performance of the deed condition. The court termed this finding decisive of the case. It merely mentioned that the trial court in that case had based its decision on a finding that the plaintiff had waived the condition by conveying the adjoining land. Underhill v. Saratoga Railroad Co., 20 Barb. 455 (N.Y.Sup.Ct.1855), held that an attempted conveyance of the possibility of reverter extinguished it. This was based on the common law doctrine of nonassignability of choses in action. This doctrine is no longer followed in California. Childs v. Newfield, 136 Cal.App.217, 28 P.2d 924 (1934); Cal.Civ.Code, § 1046.
. See Notes, Estates on Condition Subsequent—Extension of the Judicial Bias Against Forfeiture, 7 Hastings L.J. 101 (1955).
. Goodman v. Southern Pacific Company, 143 Cal.App.2d 424, 299 P.2d 321 (1956).
. Townsend v. Allen, 114 Cal.App.2d 291, 250 P.2d 292, 39 A.L.R.2d 1108 (1952); Notes, 27 So.Cal.L.Rev. 323 (1954).
. Johnson Corp. v. Pacific Electric Railroad Co., 19 Cal.App.2d 306, 65 P.2d 368 (1937); See also Hasman v. Elk Grove Union High School, 76 Cal.App. 629, 245 P. 464 (1926) ; Booth v. Los Angeles County, 124 Cal.App. 259, 12 P.2d 72 (1932); Savanna School District of Orange County v. McLeod, 137 Cal.App.2d 491, 290 P.2d 593 (1955). But see Rosecrans v. Pacific Electric R. R. Co., 21 Cal. 2d 602, 134 P.2d 245 (1943).
. 7 Hastings L.J., op. eit. supra note 5, at 106 suggests that a requirement of exclusive use must be written into the condition if the grantor intends that any other activity on the premises should work a reverter.
. Kouwenhoven v. New York Rapid Transit Corp., Per Curiam, 281 N.Y. 811, 24 N.E.2d 485 (1939); Motion for Reargument Denied, 282 N.Y. 593, 25 N.E.2d 147 (1940), affirming 256 App.Div. 253, 9 N.Y.S.2d 629 (1939); City of Santa Monica v. Jones, 104 Cal.App.2d 463, 232 P.2d 55 (1951); Sheets v. Vandalia R. R. Co., 74 Ind.App. 597, 127 N.E. 609 (1920) which held erection and maintenance of railroad and depot for 65 years sufficient compliance with deed condition requiring permanent maintenance. The court refused to decree a breach when business exigencies made it necessary to close the depot and cease service. See 1 Tiffany, Real Property § 203 (3d ed. 1939).
Question: Did the court's use of the standard of review, "de novo on facts" support the government? The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_petitioner
|
178
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD et al.
No. 71-1417.
Argued March 26, 1973
Decided May 21, 1973
Bernard Dunau argued the cause for petitioner. With him on the briefs were Plato E. Papps, Louis P. Poulton, and C. Paul Barker.
Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Griswold, Harriet S. Shapiro, Peter G. Nash, John S. Irving, and Patrick Hardin. Samuel Lang argued the cause for respondent Boeing Co. With him on the brief were C. Dale Stout and Frederick A. Kullman.
J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.
Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.
Per Curiam.
In this companion case to NLRB v. Boeing Go., ante, p. 67, we must decide whether our decision in NLRB v. Textile Workers, 409 U. S. 213, authorizes the Board to find that a union commits an unfair labor practice in seeking court enforcement of fines imposed for strikebreaking activities by employees who have resigned from the union, even though the union constitution expressly prohibits members from strikebreaking. We hold that it does.
On September 16, 1965, the day after the expiration of the collective-bargaining agreement between Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), and the Boeing Co. (the Company), the Union called a lawful strike and picketed the Company’s Michoud, Louisiana, plant to further its demands for a new contract. The strike continued for 18 days, during which time 143 of the 1,900 production and maintenance employees represented by the Union crossed the picket line to work. All of these employees had been members of the Union before the strike, but 61 resigned their membership prior to returning to work and another 58 resigned after they returned to work. These resignations were tendered in registered or certified letters to the Union. Neither its constitution nor its bylaws contained any provision expressly permitting or forbidding such resignations.
The strike ended on October 4, 1965, after ratification of a new collective-bargaining agreement by the Union membership. During late October and early November, the Union notified all employees who had crossed the picket line to work during the strike that charges had been preferred against them under the Union constitution for “Improper Conduct of a Member” because of their having “accept[ed] employment ... in an establishment where a strike or lockout exist [ed].” They were advised of the dates of their Union trials, which were to be held even in their absence, and of their right to be represented by any counsel who was a member of the International Union. Fines were imposed on all employees who had worked during the strike without regard to whether or not such employees had resigned or had remained members. None of the disciplined employees processed intra-union appeals. To the extent that fines were not paid, the Union sent written notices to the offending employees stating that the matter had been referred to an attorney for collection. Suits were initiated in state court against nine employees for the purpose of collecting the fines plus attorneys’ fees and interest. None of these suits has been resolved.
The Company filed an unfair labor practice charge with the National Labor Relations Board alleging that the Union had violated §8 (b)(1)(A) of the National Labor Relations Act, 61 Stat. 141, 29 U. S. C. § 158 (b) (1)(A). The General Counsel issued a complaint, and the Board held that the Union violated § 8(b)(1) (A), by fining those employees who had resigned from the Union before returning to work during the strike, and by fining those who had resigned after returning to work to the extent that such fines were based on post-resignation work. No violation was found in the Union’s fining members for crossing the picket line to work during the strike or in its fining those employees who resigned after they returned to work for work performed prior to resignation. The Board ordered the Union to cease and desist from fining employees who had resigned from the Union for their post-resignation work during the strike and from seeking court enforcement of such fines. It further ordered reimbursement to employees who had already paid fines for any amount imposed because of post-resignation work. The Court of Appeals sustained these holdings, 148 U. S. App. D. C. 119, 459 F. 2d 1143 (1972), and, on the Union’s petition for review, we granted certiorari. 409 U. S. 1074.
In NLRB v. Textile Workers, 409 U. S., at 217, we held that “[w]here a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct.” Since in that case there was no provision in the Union’s constitution or bylaws limiting the circumstances in which a member could resign, we concluded that the members were free to resign at will and that § 7 of the Act, 29 U. S. C. § 157, protected that right to return to work during a strike which had been commenced while they were union members. The Union’s imposition of court-collectible fines against the former members for such work was, therefore, held to violate § 8 (b)(1)(A).
Here, as in Textile Workers, the Union’s constitution and bylaws are silent on the subject of voluntary resignation from the Union. And here, as there, we leave open the question of the extent to which contractual restriction on a member’s right to resign may be limited by the Act. Since there is no evidence that the employees here either knew of or had consented to any limitation on their right to resign, we need “only to apply the law which normally is reflected in our free institutions — the right of the individual to join or to resign from associations, as he sees fit ‘subject of course to any financial obligations due and owing’ the group with which he was associated.” Textile Workers, supra, at 216.
The Union contends, however, that a result different from Textile Workers is warranted in this case because, even though its constitution does not expressly restrict the right to resign during a strike, it does impose on members an obligation to refrain from strikebreaking. The Union asserts that this provision has been consistently interpreted to bind a member, notwithstanding his resignation, to abstain from strikebreaking for the duration of an existing strike. It urges that this provision may be enforced as a matter of contract law against one whose membership has ceased, because it was an obligation he undertook while a member.
The provision in the Union’s constitution which proscribes strikebreaking by its terms purports only to define “misconduct of a member.” Nothing in the record indicates that Union members were informed, prior to the bringing of the charges that were the basis of this action, that the provision was interpreted as imposing any obligation on a resignee. Thus, in order to sustain the Union’s position, we would first have to find, contrary to the determination of the Board and of the Court of Appeals, that the Union constitution by implication extended its sanctions to nonmembers, and then further conclude that such sanctions were consistent with the Act. But we are no more disposed to find an implied post-resignation commitment from the strikebreaking proscription in the Union’s constitution here than we were to find it from the employees’ participation in the strike vote and ratification of penalties in Textile Workers. Accordingly, the judgment of the Court of Appeals sustaining the Board’s finding of an unfair labor practice on the part of petitioner Union is
Affirmed.
The expired collective agreement contained a maintenance-of-membership provision that required new employees, as a condition of continued employment, to become members of the Union unless they notified both the Union and the Company within 40 days of accepting employment that they did not wish to join. Further, Union members were required to maintain their membership during the life of the contract.
The remaining employees who returned to work during the strike did not resign from the Union.
A standard fine of $450 was imposed on each of the disciplined employees. The amount was reduced, however, for those few members who appeared at their hearings, apologized for their actions, and pledged loyalty to the Union.
None of the $450 fines has been paid, but reduced fines have been paid in a few instances.
Section 8 (b)(1)(A) of the Act provides, in relevant part:
“It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . . .”
Section 7 of the Act provides, in relevant part:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . .
It was stipulated in that case that all 31 of the employees who resigned from the Union during the strike and returned to work participated in the strike vote, and voted in favor of the strike. NLRB v. Textile Workers, 409 U. S. 213, 219 n. 2 (Blackmun, J., dissenting).
Since the collective-bargaining agreement expired prior to the times of the resignations, the maintenance-of-membership clause therein was no impediment to resigning.
The Union points out in its brief that at the 1972 International Union convention its interpretation of the strikebreaking proscription was made explicit. This constitutional amendment, made seven years after the strike here, is persuasive evidence that it was not there before, or at a minimum, that the proscription then existing did not apprise the employees of their asserted obligations to the Union.
In its reply brief, the Union argues that in Textile Workers there was no limiting rule on post-resignation return to work during the course of the strike, but that in this case, the Union constitution proscribed such conduct. In Textile Workers, however, there was a duly enacted rule prohibiting any member from aiding and abetting the employer during the strike and subjecting violators to a $2,000 fine. On its face, the constitutional proscription here advanced is no broader than that rule.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_casetyp1_1-2
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. Manuel Nicholas DIAZ, Defendant-Appellant.
No. 85-2752.
United States Court of Appeals, Seventh Circuit.
Submitted Oct. 24, 1985.
Decided Nov. 22, 1985.
Opinion Dec. 2, 1985.
Nancy J. Nicol, Law Office of Terry Sullivan, Ltd., Rolling Meadows, Ill., for defendant-appellant.
Mark D. Stuaan, Asst. U.S. Atty., Peoria, Ill., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Before CUDAHY and POSNER, Circuit Judges.
POSNER, Circuit Judge.
Diaz, the defendant in a criminal case pending in the district court, has asked us to order that court to admit him to bail pending the trial of the case. Diaz is being held under the pretrial-detention provisions of the Bail Reform Act of 1984, specifically 18 U.S.C. § 3142(e), which provides that, “Subject to rebuttal by the person [sought to be detained], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in [among other places] the Controlled Substances Act,” 21 U.S.C. §§ 801 et seq. If the presumption is applicable and not rebutted, the judicial officer shall order the person detained till the trial is over. That is what the magistrate did here, and the district judge concurred.
On the background and proper interpretation of the rebuttable presumption in section 3142(e) see Judge Breyer’s thorough discussion for the First Circuit in United States v. Jessup, 757 F.2d 378 (1st Cir. 1985). The only question we are asked to decide is whether there is adequate support for the determination that Diaz failed to rebut the presumption (which he concedes is applicable to him, since he has been indicted for multiple drug offenses, including violation of the “kingpin” statute, which carries a maximum punishment of life in prison without parole) that there is no condition that would reasonably assure Diaz’s appearance at trial if bail were granted.
Appellate review of such a determination is, necessarily, highly deferential, even though personal liberty is at stake. The ultimate determination that the magistrate and then, if requested, the district judge is required to make — whether it is reasonably certain that the defendant will show up for trial if admitted to bail (and whether, even if so, he can be left at large without endangering the safety of any other person, see 18 U.S.C. §§ 3142(e)-(g); United States v. Daniels, 772 F.2d 382 (7th Cir.1985), but that is not an issue in this case) — is inherently judgmental. It depends both on personal observation of the defendant and on a weighing of the daunting list of factors in section 3142(g) (“the nature and circumstances of the offense charged,” “the weight of the evidence against the person,” his “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history,” and several others). When the magistrate and district judge actually consider these factors, and agree on the outcome, and the factors don’t all line up in the defendant’s favor, it is difficult for an appellate court to second-guess the decision to deny bail. For although the presumption against bail is rebuttable, we agree with the First Circuit that it continues to weigh in the balance against bail even after the defendant meets his burden of producing some evidence to rebut the presumption. See 757 F.2d at 381-84. The presumption reflects a congressional judgment, to which we are obligated to give weight, that persons facing heavy sentences for particular types of offenses are likely to jump bail.
The magistrate and the district judge agreed that Diaz had not rebutted the statutory presumption. They had some grounds, certainly, for this conclusion. Diaz is charged with the most heavily punishable offense in the federal criminal code — with being a drug “kingpin” — and could if convicted face life imprisonment without parole. See 21 U.S.C. §§ 848(a), (c). (The federal penalty for murder is life imprisonment with parole possible after 10 years. See United States v. Fountain, 768 F.2d 790, 799-800 (7th Cir.1985).) That is a prospect likely to make anyone think of fleeing, especially if he is likely to be convicted, so that the prospect is more than theoretical. The evidence of Diaz’s guilt is very strong, making it unlikely that if he stays and stands trial he will be acquitted — a happier outcome than becoming a fugitive from justice. A native of Cuba, he is fluent in Spanish and would find it easier than most to relocate to another country. When arrested he was carrying almost $150,000 in cash, and although that money was of course taken away from him he may have other assets squirreled away which he could use to smooth his transition to a new life in another country. He is the kind of person who Congress was worried would have an overwhelming temptation to flee rather than face a trial having a predictable and severely adverse outcome.
There are, it is true, factors pointing against the likelihood of flight. Diaz has lived in the United States for 18 years (since he was 12), has been married for 12 years to an American citizen, has two children, is an honorably discharged veteran, has a good employment record, has many relatives in the United States, and has no prior criminal record or history of drug or alcohol abuse, a fact that among other things reduces somewhat the probability that he will receive the maximum sentence — which anyway is rarely imposed. But even the minimum sentence for being a drug kingpin is a stiff 10 years, again without possibility of parole. See 21 U.S.C. §§ 848(a), (c). It is true that unless Diaz could persuade his wife to flee with him and was willing to subject his children to the miseries of a fugitive existence, he could flee only at the cost of severing his most precious 'family ties; but if he stays they may be severed anyway, should he receive a long prison sentence without possibility of parole.
Diaz has presented a strong case that he would not flee, so that as an original matter we would find ourselves extremely uncertain how likely he is to flee. But, still being in a state of some perplexity, we cannot overrule the determination of the magistrate and district judge that requiring bond or other conditions that would leave Diaz at large pending trial would not reasonably assure that he would show up for trial.
What troubles us the most in the opinions below is the suggestion that Diaz might flee to Cuba. This seems most unlikely. So far as we know, the Cuban regime is not hospitable to returning emigres in general or suspected drug criminals in particular. But this was not the major factor in the magistrate’s or district judge’s determination and is not a sufficient basis on which to overturn the determination. As we said earlier, being bilingual expands Diaz’s options — though we very much doubt that going back to Cuba is one of them.
Diaz may of course reapply to the magistrate for bail and point out to him how skeptical we are of at least one aspect of the magistrate’s reasoning and how troubling we have found appellate resolution of this matter to be. In view of some doubts expressed by the magistrate in the course of the bail hearing we emphasize that the statutory presumption against bail in serious drug cases is, indeed, rebuttable, as the statute expressly states. It just doesn’t disappear completely; it remains as a factor weighing against bail, though a factor that can be, and here may have been, outweighed by other factors.
The motion to be admitted to bail is
Denied.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. RUZICKA et al.
No. 8759.
Circuit Court of Appeals, Seventh Circuit.
Oct. 30, 1945.
Rehearing Denied Jan. 5, 1946.
KERNER, Circuit Judge, dissenting.
William Parker Ward, of Chicago, 111., for appellants.
J. Albert Woll and John P. Lulinski, U. S. Atty., both of Chicago, 111., W. Carroll Hunter, Sp. Asst, to the Atty. Gen., James A. Doyle, Regional Atty., Office of the Solicitor, Department of Agriculture, of Chicago, 111., Katherine A. Markwell, Atty., Department of Agriculture, of Washington, D. C., Wendell Berge, Asst. Atty. Gen., J. Stephen Doyle, Jr., Sp. Asst, to the Atty. Gen., and John J. Toohey, Atty., Department of Agriculture, of Chicago, III., for appellee.
Before EVANS, SPARKS, and KER-NER, Circuit Judges.
EVANS, Circuit Judge.
Defendants, by this appeal, assail the validity of a decree entered in this suit, which was brought to collect payment of sums allegedly due the Market Administrator under the Agricultural Adjustment Act, 7 U.S.C.A. § 601, and to enjoin defendants from violating an order of the Secretary of Agriculture known as Order No. 41. The decree was entered upon the pleadings. The attack is directed to the court’s failure to permit defendants to present evidence which would show error in the Market Administrator’s “verification” of defendants’ reports.
Defendants are co-partners operating a dairy business in Chicago. The Market Administrator, checking the reports of these defendants, claims to have discovered errors which resulted in a finding by him of indebtedness of substantial sums which the defendants owed the Administrator’s “producers-settlement milk fund.” Defendants in their answer denied the existence of such errors and also denied that any sum was by them owing the Milk Fund established by the Market Administrator. They assert the verification was erroneous, improper, incomplete, and inaccurate.
Order No. 41, the order involved, is a comprehensive one made by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act, 7 U.S.C.A. § 601 et seq. It “regulates the handling of milk in the Chicago, Illinois marketing area.” Among its provisions is one which calls for the payment, by the handler, of sums based upon the amount and quality of milk “produced or received” by him within seventy miles of the Chicago City Hall.
This order also creates an official called a Market Administrator, who, with employees whom he selects, administers the order.
Among other duties, said Market Administrator “shall verify all reports and payments of each handler, by an audit of such handler’s records.” “Each handler shall keep adequate records of receipts of milk and shall * * * make available to the Market Administrator * * * such records * * *” as will enable the Market Administrator to perform his duties and particularly to verify the receipts and disposition of the milk by him handled and verify payments to producers and weigh samples and test the butter fat content of the milk so handled in the Chicago area.
The Market Administrator “may maintain a suit in his own name against any handler for collection of such handler’s pro rata share of expense * * The Market Administrator is required to establish and maintain a separate fund known as the “Producers Settlement Fund” into which he shall deposit all payments made by handlers and out of which he shall make all payments to handlers pursuant to Paragraphs (f) and (g) of this section. It also provides that the Market Administrator shall offset any such payment due to any such handler against payment due from such handler.
Important is the provision governing verification of reports and payments. “The Market Administrator shall verify all reports and payments of each handler by audit of such handler’s records, and of the record of any other handler or person upon whose disposition of milk such handler claims classification * * Most significant is the provision of the statute which permits the handler to appeal to the Secretary of Agriculture for a modification of the Administrator’s decision as to the amount due from or to the handler.
Determination of the instant appeal turns upon the correctness of the District Court’s ruling that defendants were limited in their redress efforts to an appeal to the Secretary of Agriculture. In other words, the court held that no relief through appeal to the courts to secure a correction of the Market Administrator’s verification of the handler’s report was permitted.
Defendants did not pursue their right to seek a review of the Administrator’s order by the Secretary of Agriculture, under Sec. 608c(15), prior to the commencement of this action. Defendants did file such petitions with the Secretary of Agriculture, October 28, 1943, and April 29, 1944, after the commencement of this action. No hearing was had at the time defendants petitioned the trial court on June 28, 1944, for a stay of the instant proceeding pending such administrative determination.
Since the determination of this appeal turns upon the construction to be given the controlling statute, we quote it at length:
“Sec. 608a(6) The several district courts of the United States are hereby vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating axiy order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts.”
“Sec. 608a(8) The remedies provided for in this section shall be in addition to, and not exclusive of, any of the remedies or penalties provided for elsewhere in this chapter or now or hereafter existing at law or in equity.”
“Sec. 608c(15)
“(A) Any handler subject to any order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with the regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.”
“(B) The District Courts of the United States * * * in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. * * * If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceeding's instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title. Any proceedings brought pursuant to section 608a(6) of this title * * * shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15).”
Our problem presents the difficult question of the interpretation of a statute and the ascertainment of Congressional intent. Did Congress intend, when it inserted Sec. 608 in this act, to grant an exclusive relief and bar all other remedies ?
The provisions of the statute contemplate (1) a remedy by the Government, in the district court, to enforce an order and to restrain violation of an order (Sec. 608a(6); (2) the right of the Government to institute enforcement proceedings is made not exclusive of other statutory or existing legal or equitable remedies (Sec. 608a(8)) ; (3) a handler feeling aggrieved by an order may seek review thereof with the Secretary of Agriculture, who shall give a hearing and his ruling is “final, if in accordance with law,” and review is provided of his order by the District Court, in a suit in equity. If the Court finds the Secretary’s decision is not in “accordance with law” it remands the proceeding with instructions; (4) a proceeding to enforce may be instituted by the Government, notwithstanding the pendency of an administrative proceeding under subsection (15), instituted by the handler, but the proceeding to enforce is to abate if a prior final decree is rendered in the proceedings growing out of the administrative proceeding.
It is argued in favor of an interpretation of the statute making the administrative proceeding the sole remedy to settle factual disputes: (1) The specific statutory set up is provided for the speedy and expert solution of those technical matters of administration of a specialized agricultural problem, and it must be inferred therefrom that it was intended that the administrative agency thus provided was to be exclusive. (2) Subsection 15 states the ruling of the Secretary “shall be final” subject to the review on questions of law therein provided. (3) The only limitation on the finality of his decree is that it must be in “accordance with law,” thereby eliminating review on issues of fact. Such limitation means determination in accordance with procedure provided by law and compliance with the substantive statutory law. It indicates there is not to be a review of fact issues.
On the other hand, (1) it is clear that by Subsection 608a (8) Congress did not intend to wipe out any existing equitable or legal remedy (at least in favor of the Government) despite the fact it provided specifically for enforcement proceedings. This saving clause of existing remedies tends to substantiate the belief that Congress did not mean to make the special statutory remedies the only ones. (2) The statute provides that the handler “may” utilize the administrative remedy of review. Emphasis is on the word “may.” It is argued, however, that the word “shall” could not have been used, otherwise the handler even though satisfied, would be forced to seek a review. (3) The statute recognizes the possibility of concurrency o.f remedies. The judicial one is not precluded by the administrative, except that it was to abate upon the prior final decree in the latter proceedings.
We confess to real doubt as to the true intent of Congress, but by virtue of that very doubt we conclude the aggrieved handler should not be deprived of the right to a trial on the faot issue where an alleged erroneous imposition of bills for sums due is involved.
We reach our conclusion for several reasons. Had Congress meant to make subsection (15), the administrative review, the sole and exclusive remedy, it could easily have said so, and in the absence of such an express limitation we should not read it into the statute. Our system of jurisprudence stresses fairness and completeness of hearing of factual issues to- all litigants. In this instance the Government is both the asserter and trier of facts. The handler is entitled to his day in court, even though he did not himself resort to another, affirmative, remedy, which was at his disposal. He might have been limited to a hearing by the official who is investigator, charger, and trier-of-fact. It was within the power of Congress to so legislate. But unless Congress has clearly denied access to judicial review of fact findings of the market administrator, we hold the court should be and is open to him.
Our search for precedent for guidance has not been entirely convincing or satisfactory. We find a bit of light in the statement of the Supreme Court in Stark v. Wickard, 321 U.S. 288, 308, 64 S.Ct. 559, 570, 88 L.Ed. 733:
“The Act bears on its face the intent to submit many questions arising under its administration to judicial review. § 8a(6), 8c(15) (A) and (B). It specifically states that the remedies specifically provided in § 8a are to be in addition to any remedies now existing at law or in equity. § 8a (8). This Court has heretofore construed the Act to grant handlers judicial relief in addition to the statutory review) specifically provided by § 8c(15). On complaint by the United States, the- handler was permitted by way of defense to raise issues of a want of statutory authority to impose provisions on handlers which directly affect such handlers. United States v. Rock Royal Co-op., 307 U.S. 533, 560, 561, 59 S.Ct. 993, 1006, 1007, 83 L.Ed. 1446. In the Rock Royal case the Government had contended that the handlers had no legal standing in the suit for enforcement to attack provisions of the order relating to handlers. While we upheld the contention of the Government as to the lack of standing of handlers to object to the operating of the producer settlement fund on the ground that the handlers had no ‘financial interest’ in that fund, we recognized the standing of a proprietary handler to question the alleged discrimination shown in favor of the co-operative handlers.”
The Court continues:
“With this recognition by Congress of the applicability of judicial review in this field, it is not to be lightly assumed that the silence of the statute bars from the courts an otherwise justiciable issue. * * * Here, there is no forum, other than the ordinary courts, to hear this complaint. When, as we have previously concluded in this opinion, definite personal rights are created by federal statute, similar in kind to those customarily treated in courts of law, the silence of Congress as to judicial review is, at any rate in the absence of an administrative remedy, not to be construed as a denial of authority to the aggrieved person to seek appropriate relief in the federal courts in the exercise, of their general jurisdiction. When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. ' * * * The terms of the Order are largely matters of administrative discretion as to which there is no justiciable right or are clearly authorized by a valid act. * * * Technical details of the milk business are left to the Secretary and his aides.”
It may well be argued that this latter quotation negatives somewhat the support given by the previous quotation.
In United States v. Rock Royal Co-op., 307 U.S. 533, 560, 561, 59 S.Ct. 993, 1007, 83 L.Ed. 1446, the Court said:
“Although .three of the defendants cannot complain of the benefits conferred upon cooperatives, for they are cooperatives, the defendant letter Dairy Company has standing to raise the issue of want of statutory authority to except cooperative handlers from the payment of the uniform price. It is a proprietary corporation, a handler of milk, required by the Order to pay uniform prices for the milk it purchases. * * * The cooperatives are excepted from the payment. The burden'of payment is laid directly upon Jetter while others are excepted. * *
The case of Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, gives us reason to pause, for in that case a defendant in a criminal case was denied leave to raise a defense of illegality of regulation, the violation of which was the basis of the criminal violation. The denial of leave to raise this defense w.as on the ground admin-instrative remedies had not been exhausted. But in that case, involving the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq., the administrative remedy was by statute expressly made the exclusive remedy. The same was true of the Selective Service Act, 50 U.S.C.A.Appendix, § 301 et seq., Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305.
The same is true in the case of Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638, where the Court held the District Court had no jurisdiction to enjoin the National Labor Relations Board from a hearing on unfair labor practices because the Labor Act, 29 U.S.C.A. § 151 et seq,, provided that the hearing before the Board and review by the Court of Appeals was the exclusive remedy under the statute.
The most pertinent authority is the decision of the Ninth Circuit in La Verne Co-op. Citrus Ass’n v. United States, 143 F.2d 415, which was a suit for injunction, instituted by the United States to enjoin defendants from handling lemons in violation of a certain order under the Agricultural Adjustment Act. The District Court refused to admit any of the offered evidence on the issue of unconstitutionality of the orders, on the ground that the Act provides for an exclusive administrative remedy which was pending. The Court of Appeals affirmed the decision. In this case the defendants admitted they had shipped an excessive quantity of lemons.
We rest our decision on the fact that Congress in other acts somewhat similar in character, when it denied judicial review, has expressly provided that the administrative ruling is exclusive. Here no such provision giving the administrative body exclusive jurisdiction appears. We therefore conclude that in a suit which the Act gives the Administrator the power to institute, the respondent may dispute and contest the existence of an indebtedness which is the issue at stake in said suit.
After due consideration we reach a contrary conclusion to that announced in the La Verne case.
The judgment is reversed with directions to proceed in accordance with the views herein expressed.
There have been decided in the year 1945 two cases involving appeal from a District Court review of the Secretary of Agriculture’s determination under subsection (15).
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
|
1738
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Robert Jeffrey LINNEN, Appellant, v. Troopers John ARMAINIS; George J. Titler; Walter B. Davis; Daniel Mamrose; Norman Hilf; Det. Robert McKeown; Elizabeth Hoover, In Their Individual and Official Capacities, Appellees.
No. 92-3350.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Dec. 18, 1992.
Decided April 9, 1993.
Robert J. Linnen, pro se.
Mark F. Haak, Pietragallo, Bosick & Gordon, Pittsburgh, PA for appellees Det. Robert McKeown and Elizabeth Hoover.
Ernest D. Preate, Jr., Atty. Gen., Gloria A. Tischuk, Deputy Atty. Gen., Calvin R. Koons, Sr. Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., of Pennsylvania, Pittsburgh, PA, for appel-lees Troopers John Armainis, George J. Titler, Walter B. Davis, Daniel Mamrose and Norman Hilf.
Present: SLOVITER, Chief Judge, HUTCHINSON and ROTH, Circuit Judges,
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
I.
Robert Jeffrey Linnen (Linnen)' appeals an order of the United States District Court for the Western District of Pennsylvania granting summary judgment to ap-pellee police officers John Armainis, George J. Titler, Walter B. Davis, Daniel Mamrose, Norman Hilf, Robert McKeown, and Elizabeth Hoover (collectively the “officers”). The issue presented on appeal is whether Linnen’s guilty plea to state pos-sessory offenses precludes the civil rights claim he brought under 42 U.S.C.A. § 1983 (West 1981) for violation of his constitutional rights under the Fourth and Fourteenth Amendments. His § 1983 claim is based on the state’s search and seizure of property for use as evidence against Linnen in the state criminal case in which he entered his guilty plea. In that criminal case, Linnen, while represented by counsel, had filed pro se motions to suppress the items the officers had seized but entered his guilty plea before those motions were decided. If Lin-nen had been successful in suppressing the evidence he claims the officers seized unconstitutionally, he would have had a complete defense to the possessory offenses charged against him in the state criminal case.
The state court that had accepted Lin-nen’s guilty plea in the criminal case later denied his post-conviction attack on counsel’s alleged ineffectiveness for failing to challenge the constitutionality of the officers’ seizure of Linnen’s property as evidence of crime. Linnen appealed, and that appeal is still pending in the state’s intermediate appellate court as of the date of this opinion.
After the appeal was filed, the magistrate judge to whom the instant § 1983 case was referred concluded that Linnen’s voluntary guilty plea “precludes a subsequent § 1983 action challenging the search and seizure of the evidence which was the object of the abandoned suppression motions.” He therefore recommended that the district court grant the officers’ motion for summary judgment. Linnen v. Ar-mainis, No. 91-652, Magistrate’s Report and Recommendation, at 8 n. 1 (W.D.Pa. May 11, 1991) (hereinafter “Magistrate’s Report and Recommendation”). In doing so, the magistrate judge relied in part on the state court’s order denying the PCRA petition that is the subject of Linnen’s pending state appeal. The district court adopted the magistrate judge’s recommendation and entered summary judgment for the officers.
We hold that the district court incorrectly decided that Linnen’s guilty plea precluded him on the issue of the unconstitutionality of the search. We also hold that it erred in relying on the order that is the subject of Linnen’s PCRA appeal as precluding his civil rights action. The Court of Common Pleas of Allegheny County’s order denying his petition for post-conviction relief does not decide whether the officers’ search and seizure of any of Linnen’s personal property violated the Constitution. Nevertheless, a final disposition of Linnen’s pending state appeal of that order may or may not be preclusive on the constitutionality of the search and seizure. If it is, it could determine his § 1983 action one way or the other. Therefore, in order to avoid unnecessary conflict with a final decision of a state court that may affect the constitutional question, we will vacate the district court’s order and remand with instructions to stay this action pending final resolution of Linnen’s state court appeal from the denial of his petition for post-conviction relief.
II.
The district court exercised federal question jurisdiction over Linnen’s civil rights claim pursuant to 28 U.S.C.A. §§ 1331, 1343(a)(3), (4). This Court exercises appellate jurisdiction under 28 U.S.C.A. § 1291.
III.
In January 1990, Linnen pled guilty to three separate criminal informations charging him with twelve counts of violating the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.Stat.Ann. §§ 780-101 to 780-144 (Purdon 1977 & Supp.1992), three counts of firearms violations, and two counts of criminal conspiracy. In March 1990, Linnen pled guilty to three additional controlled substance charges and one additional criminal conspiracy charge. The Court of Common Pleas of Allegheny County sentenced Lin-nen to an aggregate five- to ten-year prison term. He filed a pro se motion for modification and reconsideration of his sentence, which was denied.
Instead of pursuing a direct appeal, Lin-nen, in August 1990, filed a pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.Cons.Stat.Ann. §§ 9541-9546 (Purdon 1982 & Supp.1992). Appointed counsel filed an amended petition in April 1991. The court of common pleas denied this petition on January 29, 1992. Linnen’s appeal from the denial of PCRA relief is currently pending before the Superior Court of Pennsylvania.
On April 12, 1991, Linnen commenced this federal action under 42 U.S.C.A. § 1983 against seven police officers. In it, he claimed that their search of his apartment and his subsequent arrest on the charges to which he pled guilty violated his rights under the Fourth and Fourteenth Amendments to the Constitution. He sought $1,500.00 in compensatory damages and $2,000.00 in punitive damages against each of the seven officers.
The officers filed a motion to dismiss Linnen’s civil rights complaint, asserting the defense of collateral estoppel or issue preclusion. In support, they argued that Linnen’s guilty plea determined the issue of their liability for the constitutional torts he claims they committed against him when they seized his property and arrested him. In the alternative, they asked the district court to stay the § 1983 action pending resolution of Linnen’s state PCRA proceedings. The case was referred to a magistrate judge.
Initially, on September 19,1991, the magistrate judge filed a report recommending that the officers’ motion to dismiss be denied but that the action be stayed pending resolution of the state PCRA proceedings. The officers filed objections to the magistrate’s report along with a motion for reconsideration. To their motion and objections they attached papers from the state court record concerning Linnen’s pro se motions to suppress evidence obtained during the allegedly illegal search. Linnen responded with objections to the officers’ motion. On April 21, 1992, the district court accepted the magistrate’s recommendation and denied the officers’ motion to dismiss, but stayed Linnen’s action pending a final decision in Linnen’s PCRA proceedings.
Thereafter, the officers filed a “Status Report” advising the district court that the court of common pleas had denied Linnen’s PCRA petition, and that an appeal of its denial was pending before the superior court. The magistrate judge then issued a new report in which he recommended that the officers’ objections to his prior report be treated as motions for summary judgment which should be granted on grounds of collateral estoppel. Linnen filed objections to the magistrate judge’s new report and with them presented his own motion for partial summary judgment. The magistrate judge recommended Linnen’s motion be denied. The district court adopted the magistrate judge’s new report and recommendation and granted summary judgment in favor of all the officers. Linnen filed a timely notice of appeal.
IV.
The district court’s order granting summary judgment is subject to plenary review. Accordingly, this Court applies the same test that the district court utilized in rendering its decision. Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 543 (3d Cir.1992) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977)). Summary judgment should be granted where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
A.
Because Linnen had the opportunity to litigate his suppression motions but failed to do so, the district court concluded his guilty plea bars his § 1983 action under principles of issue preclusion. Therefore, we must first consider whether “[plaintiff’s decision to plead guilty rather than proceed with his motion to suppress is the equivalent, in this case, of an admission that the motion to suppress was meritless.” Magistrate’s Report and Recommendation, at 6-7.
Under Pennsylvania law, a guilty plea constitutes an admission to all facts alleged in the indictment. Commonwealth Dep’t of Transp. v. Mitchell, 517 Pa. 203, 535 A.2d 581, 585 (1987); Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303, 1307 (1984). In Mitchell, the Pennsylvania Supreme Court held that summary judgment may be granted in a civil proceeding based upon a guilty plea in a criminal case if the operative facts in the criminal case are identical to those that would be litigated in the civil case. However, “[reasonable doubt as to what was decided by a prior judgment should be resolved against using it as an estoppel[.]” Gregory v. Chehi, 843 F.2d 111, 121 (3d Cir.1988) (quoting Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970)).
In this respect, federal law is in accord with that of Pennsylvania. In Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983), the United States Supreme Court held, under Virginia law, that a guilty plea entered in a state criminal proceeding would not bar a subsequent § 1983 action where the issues to be determined in the later case were neither actually litigated nor necessary to support the judgment entered in the prior proceeding. Id. at 316-17, 103 S.Ct. at 2374-75; see Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346, 1348 (collateral estop-pel applies only to essential issues of fact that have been actually litigated) (quoting Schubach v. Silver, 461 Pa. 366, 336 A.2d 328, 334 (1975)), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). The Supreme Court went on to state that the defendant’s guilt on the charges against him was “simply irrelevant to the legality of the search under the fourth amendment or to [his] right to compensation from state officials under § 1983.” Haring, 462 U.S. at 316, 103 S.Ct. at 2374. “[A] defendant’s decision to plead guilty may have any number of other motivations[.]” Id. at 318, 103 S.Ct. at 2376 (citing Tollett v. Henderson, 411 U.S. 258, 263, 93 S.Ct. 1602, 1606, 36 L.Ed.2d 235 (1973); Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970)).
Linnen was charged with possession of drugs, violation of the firearms act, and criminal conspiracy. Although a successful suppression motion may have given Lin-nen a complete defense to the offenses with which he was charged, no issues pertinent to his § 1983 action were “actually litigated” in the state criminal case because Linnen did not pursue his suppression motion in that proceeding. The issue of whether Linnen’s Fourth or Fourteenth Amendment rights were violated was not before the state court in its initial disposition of the criminal charges against Linnen. Nothing in the state criminal action indicates the court of common pleas determined, in accepting Linnen’s guilty plea, that the officers acted within constitutional bounds when they seized Linnen’s property for use as evidence against him. Persons who are guilty of crime are not, ipso facto, stripped of their constitutional right not to be deprived of their property in violation of the Fourth or Fourteenth Amendments.
Linnen’s guilty plea was not an implied admission that the search of his apartment and his arrest were legal. Accordingly, Linnen’s guilty plea does not bar his § 1983 civil action because it does not involve any issue that would be preclusive under the full faith and credit clause of the Constitution, as implemented by 28 U.S.C.A. § 1738. Therefore, the district court therefore erred in accepting the magistrate judge’s recommendation to dismiss insofar as that recommendation assumed Linnen’s guilty plea was based on a determination that he would be unable to prevail on a motion to suppress evidence.
B.
It is significant, however, that the magistrate judge’s recommendation to dismiss came after the court of common pleas denied Linnen’s PCRA petition. Both the magistrate judge and the district court relied on that denial in concluding the court of common pleas’ order denying post-conviction relief precluded Linnen’s § 1983 action. Therefore, we must still consider what effect, if any, the court of common pleas’ denial of Linnen’s post-conviction attack has on his § 1983 action.
In his PCRA petition Linnen alleged that his guilty plea was unlawfully induced by, inter alia, trial counsel’s failure to challenge the legality of the search of his apartment. See Commonwealth v. Linnen, Crim.Div. Nos. CC8909179, 891056, 8909243, at 3 (Pa. Ct. of Common Pleas, Allegheny Cty. Jan. 30, 1992). In evaluating this claim, the state court had to consider not only whether Linnen’s guilty plea was voluntarily entered but also whether he received ineffective assistance of counsel. The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), articulated the standard governing a claim of ineffective assistance of counsel as follows:
First, the defendant must show that counsel’s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
In order to prevail on his PCRA petition, Linnen therefore had to establish not only that his counsel’s representation fell below an objective standard of reasonableness, but also that there was a reasonable probability that the result in the criminal action would have been different, but for counsel’s failure to meet professional standards. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064-65, 2068).
In § 1983 cases challenging state-conducted searches and seizures, this Court has already expressed a preference for holding federal civil rights claims in abeyance until state appellate proceedings that may affect the outcome of the federal action are decided. In Bailey v. Ness, 733 F.2d 279, 281 (3d Cir.1984), we held that a district court confronted with uncertain state law regarding the finality of judgments pending appeal should stay further proceedings until final disposition of the case in the state courts. Id. (quoting Occidental Life Ins. Co. of Calif. v. Nichols, 216 F.2d 839, 841 (5th Cir.1954)). Bailey cited two conflicting lines of Pennsylvania cases on whether a judgment by a trial court is final if it is appealed. One line holds that a state court judgment is not a final judgment for purposes of collateral estoppel if an appeal is pending. Id. (citing Bryar v. Campbell, 177 U.S. 649, 20 S.Ct. 794, 44 L.Ed. 926 (1900) (interpreting Pennsylvania law); United States v. Employers Mut. Liab. Ins. Co. of Wisconsin, 495 F.Supp. 840, 842 (W.D.Pa.1980); In re Levitt, 18 B.R. 595, 598 n. 11 (Bankr.E.D.Pa.1982); Columbia Nat'l Bank v. Dunn, 207 Pa. 548, 56 A. 1087 (1904); Smalls Appeal, 15 A. 807 (Pa.1888); Souter v. Baymore, 1 Pa. 415 (1848)). The second line of cases holds that a judgment is final for collateral estoppel purposes “ ‘unless or until it is reversed.’ ” Id. (quoting Philadelphia Elec. Co. v. Pennsylvania Pub. Util. Comm’n, 61 Pa. Co. with. 325, 433 A.2d 620, 626 (1981)); see id. at 281-82 (citing Commercial Union Assurance Co. v. Pucci, 523 F.Supp. 1310, 1318 (W.D.Pa.1981); Nash v. Reedel, 86 F.R.D. 13, 15 (E.D.Pa.1980); In re Meade Land and Dev. Co., Inc., 1 B.R. 279, 283 (Bankr.E.D.Pa.1979); Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 131 A.2d 622, cert. denied, 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44 (1957); Wallace’s Estate, 316 Pa. 148, 174 A. 397 (1934); Elkin’s Petition, 289 Pa. 327, 137 A. 459 (1927); Woodward v. Carson, 86 Pa. 176 (1878); Rheem v. Naugatuck Wheel Co., 33 Pa. 356 (1859)).
Though we held in Bailey that Pennsylvania law is uncertain on what effect an appeal has on an otherwise final order, more recent Pennsylvania cases Bailey cites hold finality is not affected by appeal. Moreover, since Bailey, the Commonwealth Court of Pennsylvania has twice unequivocally decided that a state trial court judgment is final unless or until it is reversed. See O’Hara Sanitation Co. v. Commonwealth Dep’t of Envt'l. Resources, 125 Pa. Cmwlth. 441, 557 A.2d 453, 455 (1989) (citing Philadelphia Elec. Co., 433 A.2d at 626); Bassett v. Civil Serv. Comm’n of Philadelphia, 100 Pa.Cmwlth. 356, 514 A.2d 984, 986 (1986) (citing Philadelphia Elec. Co., 433 A.2d at 626). These two decisions are consistent with the principles set forth in the Restatement (Second) of Judgments §§ 13, 16 (1982).
Fortunately, on the record now before us, however, we need not determine whether the conflict in Pennsylvania law regarding the finality of judgments for collateral estoppel purposes that we discovered in Bailey has now been resolved and therefore that Bailey is no longer controlling.
In denying Linnen’s PCRA petition, the court of common pleas, after first holding that Linnen had voluntarily entered his guilty plea, went on to hold that Linnen had failed to establish the ineffectiveness of his attorney. Commonwealth v. Linnen, supra at 3-4. It stated:
Regarding the assertions of ineffective assistance of counsel, this Court is of the opinion that the assertions constitute “ineffectiveness in a vacuum” in contravention of Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). The presumption of competent counsel was not overcome by the assertions contained in the petition, nor is the Court persuaded that trial counsel did not display an objectively reasonable basis designed to effectuate Petitioner’s interest.
Id. at 5. This language indicates the state court did not, in rejecting Linnen’s Sixth Amendment claims, decide the merits of his Fourth or Fourteenth Amendment claims. Collateral estoppel only applies to essential issues that have been actually litigated and determined. Muhammad, 587 A.2d at 1348 (citing Schuback, 336 A.2d at 334). Because there is no indication that the merits of Linnen’s Fourth Amendment claims have been determined, the court of common pleas’ denial of his PCRA petition cannot preclude his § 1983 action.
Linnen's state appeal of the denial of his PCRA petition counsels a stay of his § 1983 action while that appeal is pending. In order to succeed on his appeal, Linnen is likely to have to establish that his Fourth or Fourteenth Amendment claims are meritorious. See Kimmelman, 477 U.S. at 375, 106 S.Ct. at 2582-83. State courts unquestionably have power to render preclusive judgments regarding the Fourth Amendment’s prohibition of unreasonable searches and seizures. See Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53, 49 L.Ed.2d 1067 (1976). In Allen v. McCurry, the Supreme Court held that nothing in the language or legislative history of § 1983, or its interpretation by the courts of appeals, foreshadows or indicates that it repealed or restricted the traditional common law doctrines of claim or issue preclusion. Allen, 449 U.S. at 97-98, 101 S.Ct. at 416-17; see id. at 99, 101 S.Ct. at 417 (by enacting § 1983 Congress was adding to jurisdiction of federal courts, not subtracting from jurisdiction of state courts). Instead, the Supreme Court stated Congress intended a federal remedy under § 1983 in only three circumstances: “where state substantive law was facially unconstitutional, to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice.” Id. at 100-01, 101 S.Ct. at 418 (citing Monroe v. Pape, 365 U.S. 167, 173-74, 81 S.Ct. 473, 476-77, 5 L.Ed.2d 492 (1961)). Otherwise, 28 U.S.C.A. § 1738’s provisions concerning full faith and credit require a federal court to “give preclusive effect to state-court judgments whenever the courts of the State from which the judgment emerged would do so[.]” Id. at 96, 101 S.Ct. at 415.
Linnen has not alleged any of the three circumstances under which he might obtain § 1983 relief regardless of the state courts’ final determination of the merits of his Fourth and Fourteenth Amendment claims. Accordingly, if the state appellate court determines the merits of those claims, that determination will, one way or the other, control the liability issue in Linnen’s present § 1983 action.
Conversely, a decision on the merits of Linnen’s § 1983 action upholding his Fourth Amendment claim could have pre-clusive effect on the state courts considering his PCRA action because § 1738 would ordinarily require a state court to give full faith and credit to an order of a federal court. Here, however, if the district court decided Linnen’s § 1983 case in his favor before the state courts disposed of his post-conviction appeal, the principle of full faith and credit, so important to our federal system, as § 1738 implements it, would conflict with another policy grounded in federalism — the policy requiring a petitioner to exhaust state remedies before bringing a federal habeas action. A stay can avoid the potential conflict between those two principles of federalism. Moreover, we think the overlap of issues between Lin-nen’s PCRA petition and his § 1983 action is analogous to the situation that arises when a state prisoner files a federal habeas corpus action and a civil rights action simultaneously. In that situation, we have already held that the federal habeas and civil rights actions should both be stayed pending exhaustion of state remedies. Harper v. Jeffries, 808 F.2d 281, 283-84 (3d Cir.1986); accord Melvin v. Nickolopoulos, 864 F.2d 301, 304 (3d Cir.1988). Our rulings in Harper and Nickolopoulos followed the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). There, the Supreme Court stated:
If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release — the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under the Civil Rights Act in federal Court without any requirement of prior exhaustion of state remedies.
Id. at 494, 93 S.Ct. at 1838 (emphasis in original).
Our decisions in Harper and Nickolo-poulos were designed to avoid the potential conflict with exhaustion that resulted from Preiser’s teaching that a state prisoner could file a § 1983 action without exhausting state remedies on his claim that he should be freed because he was unconstitutionally convicted. In those cases, we held that a district court should not dismiss a prisoner’s federal civil rights claim simply because it is related to a petition for habeas corpus relief but instead should stay the civil rights claim until the state remedies available to obtain relief from unconstitutional convictions were exhausted and thereafter proceed on both the civil rights and the habeas aspects of the state prisoner’s federal claims. We recognize that Lin-nen’s case does not involve a federal habe-as filed before exhaustion of state remedies. Nevertheless, the overlap between the factual and legal issues that are inherent in both Linnen’s § 1983 action and his PCRA petition presents a close analogy. The district court’s premature adjudication of Linnen’s § 1983 action “would interfere with congressional policy requiring initial resort to state tribunals in habeas corpus petitions.” Harper, 808 F.2d at 285. On the strength of this analogy, we think that the district court should stay Linnen’s § 1983 action until he has had an opportunity to exhaust all state remedies on his PCRA action. See id. If the state courts ultimately reach and decide the merits of Linnen’s Fourth Amendment claims after he has had a fair chance to litigate them, their decision will be preclusive, one way or the other on the instant § 1983 claim under Allen v. McCurry.
We recognize, of course, that the state court could deny Linnen’s petition for other reasons. For example, it could conclude that Linnen was properly advised but nevertheless insisted on pleading guilty. It could also grant his petition by holding the officers’ search and seizure was wrongful because of an independent and adequate state ground such as violation of the state constitution. The court could also grant the petition on any one or more of the seven other grounds on which Linnen asserts that his counsel was constitutionally deficient. In any of these cases, a final decision in his appeal from the denial of his PCRA petition would not be preclusive.
If this happens and the state courts ultimately affirm the court of common pleas’ denial of Linnen’s PCRA petition without deciding Linnen’s Fourth and Fourteenth Amendment claims or grant Linnen’s petition on a ground other than the allegedly unconstitutional search and seizure, Linnen could then proceed with his § 1983 action without fear of preclusion. Only an order granting or denying his PCRA petition on Fourth Amendment grounds will have pre-clusive effect on his civil rights action in federal court. Nevertheless, we think the potential for conflict between state and federal judicial authority is at least as great in the present situation as in Harper and Nickolopoulos.
Accordingly, we will vacate the district court’s order granting summary judgment to the officers and remand with instructions to stay Linnen’s § 1983 action pending ultimate disposition on appeal of the denial of PCRA petition in state court.
. Appellees McKeown and Hoover moved for dismissal only.
. Virginia collateral estoppel law was, at the time of Haring, similar to that of Pennsylvania. See Haring, 462 U.S. at 314-15, 103 S.Ct. at 2373-74 (discussing Virginia case law on collateral estoppel).
. Linnen was represented by counsel during the criminal action. The only suppression motions submitted in the state trial court were those Linnen attempted to file pro se. In Pennsylvania, a represented criminal defendant does not have a right to act as co-counsel at his own trial. Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880, 883 (1979). In Pennsylvania, such “hybrid” representation is not permitted at either the trial or appellate level. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595, 598 (1990). Thus, Linnen's pro se motions to suppress evidence would not have ordinarily been considered on their merits by the court of common pleas and the record before us gives no contrary indication.
. "The ... judicial proceedings of any court of any ... State ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State ... from which they are taken.” 28 U.S.C.A. § 1738 (West 1966). This statute supplements Article IV, § 1 of the United States Constitution, which applies full faith and credit only to state courts. Gregory, 843 F.2d at 116 n. 3; see U.S. Const, art. IV, § 1.
. See, e.g., Magistrate’s Report and Recommendation, at 3 ("It has become necessary to issue a new Report and Recommendation both because the first report was inaccurate ... and because the state court has issued a ruling on plaintiff s post-conviction petition.”). Other portions of the magistrate judge’s second report shows his reliance on the state court’s denial of Linnen’s PCRA petition as precluding his § 1983 action:
The state court, in denying post-conviction relief, determined that trial counsel did not render ineffective assistance by failing to pursue the motion to suppress filed by plaintiff. Therefore, the state court has found that plaintiff voluntarily entered his guilty plea. Plaintiff may not now assert that counsel caused him to forego his right to seek a ruling on his motion to suppress in the state court, since the state court has determined that it was plaintiffs voluntary and knowing decision to take that course of action. * * * [Linnen’s] complaint that his attorney failed to press the motion in the state court has been rejected by the state court, and cannot serve here to justify his failure to litigate issues he expressly decided not to litigate in the state court.
Id. at 5, 7-8.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
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songer_trialpro
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. 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".
Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellant, v. BEREUTER’S, INC., Appellee.
No. 82-1711.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 16, 1983.
Decided April 13, 1983.
Rehearing Denied June 22, 1983.
T. Timothy Ryan, Jr., Sol. of Labor, Beate Bloch, Associate Sol., Joseph M. Woodward, Deputy Associate Sol., Gregory O’Duden, Atty., U.S. Dept, of Labor, Washington, D.C., for appellant.
Nelson & Harding, William A. Harding, Lincoln, Neb., for appellee.
Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.
BRIGHT, Circuit Judge.
The Secretary of Labor brought suit under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (1976 & Supp IV 1980), against Bereuter’s, Inc., a Nebraska corporation, to recover unpaid overtime compensation and liquidated damages on behalf of three employees of Bereuter’s for the period February 5,1978 through February 2, 1980. The parties stipulated to the facts, and on cross-motions for summary judgment the district court rejected the contentions of the Secretary, accepted the defense of an exemption offered by Bereuter’s, and entered a judgment of dismissal of the action. The Secretary brings this appeal. For reasons outlined below, we reverse and direct the entry of judgment in favor of the Secretary.
I. Background.
The facts, as stipulated to by the parties, disclose that Bereuter’s failed to pay Bert Barnes, a partsman, and Ricky Hans and Robert Peeks, service mechanics, the statutory overtime premium for hours worked in excess of forty hours per work week as provided for in 29 U.S.C. § 207. Bereuter’s refused to pay the overtime compensation contending that its business operations as an automobile dealer entitled it to an exemption under 29 U.S.C. § 213(b)(10)(A). That provision exempts from the overtime premium requirement:
[A]ny salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers!]] [29 U.S.C. § 213(b)(10)(A) (emphasis added).]
Bereuter’s engages in a number of business activities including the retail sale of cars and trucks; the leasing of cars; the sale of hardware, tires, gasoline, parts, and batteries; and the wholesale sale of cars, trucks, gasoline and petroleum products. Bereuter’s asserts that its main or “primary” business activity is the retail sale of automobiles and trucks and, therefore, maintains that it meets the requirements set forth in the exemption. Bereuter’s contention rests on the fact that its annual sales in 1978 and 1979, the years in issue, disclose that more of its receipts came from the retail sales of automobiles and trucks than from any other of its business activities. According to the stipulation, a detailed analysis of the total volume of business done in 1978 and 1979 discloses the following:
1978 1979
Retail New and Used Car & Truck Sales $229,412.00 $227,601.50
Wholesale Sales of Cars, Trucks, Gasoline & Petroleum Products $72,016.82 $138.002.26
Other Retail Sales of Hardware, Tires, Batteries, Parts, Labor & Mise. $179,279.00 $209,879.24
The Secretary, on the other hand, asserts that Bereuter’s does not qualify for the exemption because less than one-half of that establishment’s annual dollar volume of sales and business receipts comes from the retail sale of automobiles and trucks. The Secretary relies on a regulation, 29 C.F.R. § 779.372(d), as a basis for rejecting Bereuter’s exemption defense. That regulation provides:
(d) Primarily engaged. As used in section 13(b)(10), primarily engaged means the major part or over 50 percent of the salesman’s, partsman’s, or mechanic’s time must be spent in selling or servicing the enumerated vehicles. As applied to the establishment, primarily engaged means that over half of the establishments annual dollar volume of sales made or business done must come from sales of the enumerated vehicles. [29 C.F.R. § 779.372(d).]
The district court rejected the Secretary’s application of the regulation to Bereuter’s. The district court noted that while the over-fifty-percent requirement is a feasible means of determining the primary business activity of a business engaged in only two lines, “the regulation is ill-adapted to the situation involving a business engaged in more than two lines of business activity.” The district court observed that under the interpretation proposed by the Secretary, the business activity responsible for generating the greatest percentage of the total annual dollar volume of business done, although not fifty percent of that total, could not, under the definitional activity test of 29 C.F.R. § 779.372, be deemed the primary business activity, even though it was the principal business activity in terms of total business activity generated. The district court rejected the Secretary’s interpretation, and found that Bereuter’s qualified for the exemption. We disagree with the district court’s analysis.
II. Discussion.
The Fair Labor Standards Act exemptions are to be narrowly construed against the employer asserting them, and ought to be applied only in those circumstances which plainly and unmistakably come within their terms and spirit. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Hodgson v. Jones, 453 F.2d 515, 519 (8th Cir.1971). Moreover, the Secretary’s interpretations are entitled to considerable weight. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Hodgson v. Jones, supra, 453 F.2d at 518-19.
Our examination of the sparse legislative history indicates Congress’ intention to exempt only those businesses which have as their essential nature the retail sales of automobiles, trucks or farm implements. The forerunner of the exemption here- at issue was formulated in 1960 when Congress first considered the wide-ranging FLSA amendments enacted in 1961. In an amendment adopted by the Senate, Senator Anderson proposed.to exempt those establishments which sold automobiles or trucks from the FLSA’s wage and hour requirements. 106 Cong.Rec. 16691 (1960). The Senator explained that the purpose of the amendment was to exempt only “regular, ordinary automobile dealers * * * ”; it was not intended to cover atypical, hybrid dealers such as those “who handled automobiles and who also handled gasoline, for example * * *.” Id. at 16693.
The exemption, as ultimately enacted in the 1961 amendments, covered establishments “primarily engaged” in the business of selling automobiles, trucks or farm implements. 75 Stat. 65, 73 (1961). Although “primarily engaged” did not appear in the original exemption proposed in 1960, there is no indication that Congress, by inserting this term, intended to abandon its previously expressed concern that the exemption should have limited effect and apply only to “regular, ordinary dealers.” Accordingly, we construe the legislative history as indicating that Congress intended the exemption to be narrowly applied and was not designed to exempt those dealers who engage in the retail sales of automobiles to a limited degree.
The 1966 amendments to the FLSA, which provide the most current version of the exemption here at issue, narrowed even further what Congress intended to be a circumscribed exemption. Prior to 1966, the Act exempted from both the minimum wage and overtime provisions all employees of automobile, truck, and farm implement dealers. The 1966 amendments had an-overall limiting effect on the exemption by restricting it to the specific employee categories of “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, * * * trucks, [or] farm implements * * See 80 Stat. 830, 836; Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 66 (5th Cir.), cert. denied., 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970).
We think that in order to determine whether the employer establishment is primarily engaged in the business of selling automobiles, trucks, or farm implements to ultimate purchasers or whether the primary business activities of the establishment are in other lines of endeavor, courts must put retail automobile and truck business on one side of the equation and the other business activities of the establishment on the other side. A company will qualify for the exemption in 29 U.S.C. § 213(b)(10)(A) only if over one-half the establishment’s dollar volume of sales is attributable to the retail sales of automobiles, trucks, or farm implements. It makes no difference for the purposes of the exemption whether the nonexempt activities consist of one or more lines of business. This rationale is not only consistent with the exemption’s limited purpose, it is also the approach taken by the Secretary, and it seems reasonable.
It cannot be disputed that Bereuter’s received more gross income in each year in question from its retail sales of automobiles and trucks than from either the wholesale sale of automobiles, trucks, gasoline and petroleum products or its retail sales such as hardware, tires, batteries and parts. Nevertheless, the combination of gross revenue from the other lines of business exceeded, in each, year, the gross revenue from the retail sale of automobiles and trucks.
Accordingly, we hold the Secretary’s application of the regulation to Bereuter is valid and determine that Bereuter’s does not qualify for the exemption because more than one-half of its gross proceeds do not emanate from the retail sales of automobiles, trucks, or farm implements.
We reverse and remand for further proceedings and the entry of a judgment for the Secretary consistent with this opinion.
. See 106 Cong.Rec. 16691, 16708 (1960). Efforts to enact the FLSA amendments stalled, however, when the Senate and House could not agree on a compromise bill. Congress did pass the amendments in 1961 and the legislation included an exemption for auto dealers. See Fair Labor Standards Amendments of 1961, 75 Stat. 65.
. The district court found that Bereuter’s retail sales of cars and trucks to ultimate purchasers constituted 47.42% and 39.54% of its total annual dollar volume for the years 1978 and 1979, respectively. Bereuter’s other business activity — the retail sale of hardware, tires, etc., the leasing of cars, and the wholesale of cars, trucks, etc. — generated 52.27% of its annual dollar volume for 1978 and 60.45% for 1979. In 1980, Bereuter’s retail sales of cars and trucks made up approximately 32% of its total revenues. Some 68% of its 1980 annual dollar volume was generated by its various other business activities.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ERIE HUMAN RELATIONS COMMISSION et al., Appellees, v. Hon. Louis J. TULLIO, Mayor of the City of Erie, et al., Appellants.
No. 73-1707.
United States Court of Appeals, Third Circuit.
Argued Jan. 7, 1974.
Decided March 4, 1974.
See also, D.C., 360 F.Supp. 628.
Lawrence L. Kinter, Erie, Pa., for appellants.
Norman J. Watkins, Deputy Atty. Gen., Harrisburg, Pa., argued for the appellees.
Michael Louik, Robert P. Vogel, Asst. Attys. Gen., Israel Packel, Atty. Gen., for Commonwealth of Pennsylvania as ami-cus curiae.
Henry W. Sawyer, III, Amy F. Davis, Philadelphia, Pa., for amicus curiae American Civil Liberties Union.
Before ADAMS, HUNTER and WEIS, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This is an appeal in an action brought by the Erie Human Relations Commission and four individual blacks in which it was alleged that the hiring procedures used to staff the Erie, Pennsylvania Police Department discriminate against blacks, in violation of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983 (1970), and the equal protection clause. The district court found in favor of the plaintiffs on the merits and ordered the imposition of a limited racial hiring quota. The appellants, various officials of the City of Erie, do not appeal the finding of discrimination, but they do challenge the propriety of this relief. In addition, they contend that the plaintiff Erie Human Relations Commission lacks standing to sue. We agree with the appellants on the standing issue but conclude that their attack on the district court’s affirmative order lacks merit.
This suit was filed on March 22, 1973 and was accompanied by a Motion for a Temporary Restraining Order that sought, inter alia, to enjoin the defendants from administering a police civil service “mental” examination scheduled to be given on March 24, 1973. The motion was granted and a Temporary Restraining Order was issued on March 23, 1973.
The parties thereupon entered into negotiations that resulted in a stipulation which permitted the City to proceed with the mental examination on April 21, 1973. In return, the defendants agreed to make numerous changes in the requirements that must be met in order to be eligible to take the police mental examination (these preliminary requirements are hereinafter referred to as “pre-exam requirements”). In addition, the City agreed that:
“[u]pon verification by the federal Equal Employment Opportunity Commission that there exists a mental examination for applicants for the position of police officer, which has been validated both as to job-relatedness and to the exclusion of cultural bias, the Civil Service Board will substitute that examination for the one presently in use.”
Finally, the parties agreed to submit to the district court the question of what affirmative relief, if any, should be granted with respect to the hiring of black police officers.
In considering the question of affirmative relief, the district court adopted as its findings the factual assertions that were made a part of the stipulation. As a result, the record upon which the judgment is based contains the following agreed upon facts:
“1) The Erie Police Department (hereinafter “E.P.D.”) presently consists of 214 officers, 3 of whom are black.
“2) During the period 1962-1972, 2 black officers were hired as police officers for the E.P.D.
“3) During the period 1952-1972, 7 black officers were hired as police officers for the E.P.D.
“4) 6.8% of the residents of the City of Erie, Pennsylvania (hereinafter “City”) are black.
“5) 1.4% of the officers of the E.P.D. are black.
* * -X- # -X- *
“7) Any discrimination based upon the above-mentioned disparity and statistics is not the result of any intentional discrimination on the part of the City or any of the named defendants.
•3f *X*
“12) The mental examination given to applicants is, and has been validated, as job-related.
“13) The mental examination given to applicants has not been validated with respect to cultural bias which may or may not exist in said examination.
* * * -x- * *»
The district court determined that these facts established “as a matter of law that a pattern of racial discrimination has existed for a considerable period of time in the selection of officers of the Police Department of the City of Erie.”
The court went on to conclude that, since the changes in the pre-exam requirements provided only a partial cure for this pattern of discrimination, affirmative relief was necessary. It therefore imposed a special racial quota upon the hiring procedures to be employed in filling the 20 positions presently open on the police force. The court’s order reads as follows:
“. . . Defendants shall, in filling the next twenty positions . . . nominate to the appointing authority a sufficient number of candidates of the black race from the existing eligibility lists prepared pursuant to examinations administered in April 1973 to provide for the appointment of one black race candidate for every candidate of the white race so appointed until not less than ten black candidates have been so appointed unless the list of eligible black candidates is sooner exhausted. . . . ”
The appellants raise two contentions with regard to the propriety of this order. Their first claim is that a racial hiring quota can only be ordered by a court if the facts of the case establish either 1) that there is a history of intentional racial discrimination or 2) that the testing and other pre-hiring procedures which exclude minority group members are not job-related. In the present case, they argue, the facts do not establish either of these conditions (and in fact establish the opposite). As a result, they conclude that the racial hiring quota that was ordered is impermissible.
This contention is faulty in two respects. First, even if we were to agree that racial quotas are barred in situations where there is no intentional discrimination and where the pre-hiring procedures are job-related, this rule would have no application here. The appellants contend that the stipulation establishes job-relatedness when it states that “[t]he mental examination . . . has been validated as, job-related.” However, since the “mental examination” is only one part of the City’s pre-hiring procedure, this statement by itself cannot fully establish that all of the criteria used "to evaluate those interested in becoming police officers were job-related. In fact, the stipulation (which constitutes all findings of facts in the case) is entirely silent on whether the various “pre-exam requirements,” in effect when they created the pool of applicants who took the April 21, 1973 mental examination, were job-related.
The absence of findings on this question is fatal to the appellants’ claim. Since the appellees’ evidence clearly established a prima facie case of discrimination, the burden shifted to the appellants to justify their pre-hiring procedures in order to avoid a finding of discrimination. Educational Equality League v. Tate, 472 F.2d 612, 616 (3d Cir. 1973); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333, 1337 (2d Cir. 1973); Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972).
We do not believe that the appellants’ burden of proof is any lighter here where they concede that discrimination exists (as they do in this appeal) but seek to invoke the job-relatedness of their prehiring procedures to avoid the imposition of a particular equitable remedy. Thus, since the record is silent on whether the pre-exam requirements used are job-related, the appellants have failed to establish a necessary element of their own rule, and they cannot invoke it to avoid imposition of the racial quota ordered by the district court.
Moreover, we believe that this contention is faulty in a second and more basic respect as well. The rule they seek to establish would, in effect, limit, as a matter of law a district court’s discretion in formulating equitable relief. We believe that such a per se limitation would be unwise absent a compelling demonstration of its necessity. As the Supreme Court has said:
“The framing of decrees should take place in the District rather than in the Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular case.” Int’l Salt Co. v. United States, 332 U.S. 392, 400-411, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947).
We do not feel such a compelling demonstration has been made here, and indeed believe that the arguments against appellants’ proposed rule predominate. Since many factors must go into a district court’s judgment as to the form of equitable relief, a rule that would make two factors — intent and job-relatedness— determinative would appear to limit the district court in a rather arbitrary way. We do not believe this is desirable. On the contrary, preservation of the court’s flexibility in the framing of remedies would seem to be particularly important in racial discrimination cases since they often require the district court to tailor its order to meet the needs of a highly complex and emotionally charged factual situation. As a result, we must reject the appellants’ first claim on this basis as well.
Appellants’ second contention with regard to the affirmative relief ordered is that the one black for one white (or 50%) ratio imposed is too high and constitutes an abuse of discretion by the district court. We reject this contention as well. The ratio here established is entirely reasonable when viewed within the context of the facts of the case and the limited scope of the total order. The quota imposed can only affect the next 20 positions filled, and will affect those positions only if 10 qualified blacks are available for appointment. Moreover, even if all 10 “black” positions are filled, it will only bring the percentage of blacks on the force up to 5.5%, a figure still somewhat below their 6.8% representation in the total population of Erie.
Finally, we note that the quota was designed to take advantage of the unique opportunity presented by the creation of 20 new police positions through a special state grant. We cannot say that the district court abused its discretion in using this grant as a vehicle to expedite the removal of the effects of the discrimination found here. Indeed, given the sensitive and highly visible role played by the police in maintaining racial peace and harmony, we feel that we should commend the district court since its order acts decisively and yet at the same time is carefully limited so that its adverse impact on others is minimized. Imposition of a 50% quota limited to the next 20 positions is not reversible error in these circumstances.
Appellants’ last contention— that the district court erred in refusing to dismiss the Erie Human Relations Commission as a plaintiff for lack of standing — is meritorious. As the recent discussion of the subject by this court in Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir., filed Jan. 4, 1974) makes clear, to have standing a party must allege, at a minimum, a personal stake in the outcome of the action. In this case, the Erie Human Relations Commission has made no such allegation either for itself as a body or for its individual members. Instead, it seeks to bring this suit in its own name but on behalf of what it terms its “black clientele.” Brief for Appellees at 5. This is improper. A party with no personal stake in the outcome of a case cannot establish standing to sue in federal court by alleging a concern for the rights of others, even if it is a body created by local ordinance for the express purpose of protecting those rights.
The order of the district court will be remanded with directions that it dismiss the Erie Human Relations Commission as a party plaintiff. In all other respects the order of the district court will be affirmed.
. The changes were designed to eliminate allegedly discriminatory effects.
. We note that the defendants also agreed to reduce the minimum passing rate on the mental examination from 70% to 60%. Stipulation, If 9.
. These 20 additional positions were apparently made possible by virtue of a special state grant. See Erie Human Relations Commission v. Tullio, 360 F.Supp. 628 (W.D.Pa., filed July 12, 1973).
. “[A] prima facie case is established by a demonstration that blacks were under-represented and that there was an opportunity for racial discrimination.” Educational Equality League v. Tate, 472 F.2d 612, 618 (3d Cir. 1973) ; Smith v. Yeager, 465 F.2d 272, 279 (3d Cir. 1972), cert. denied 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665 (1972). In this case under-representation was established by the disparity between the percentage of blacks on the force and the percentage of blacks in Erie’s total population. The opportunity for discrimination was created by the necessity for making subjective judgments in applying several of the pre-exam requirements that were amended by the stipulation.
. We note in passing that the “pre-exam requirements” which were used to select the pool of applicants who took the April, 1973 examination have now been substantially altered by agreement of the parties. Thus, while there are no findings of fact on this point, common sense would suggest that they were altered because they had a discriminatory effect, and that therefore they were not, in fact, job-related. However, this line Of reasoning involves a series of inferences based on evidences in the record. Since this process is more properly performed by the district court, we do not rely upon it as the basis for our decision.
. In this latter respect, the present order differs significantly from the order reviewed in Commonwealth of Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (aff’d by an evenly divided court en lane). Since in this case the order clearly requires that all blacks appointed under the quota be qualified, the most serious concern of the dissenting judges in O’HTeill is not present here.
. Before concluding our discussion of the claims raised with regard to the relief ordered, we should note that while constitutional objections to the imposition of remedial quotas based on race have been raised in other cases, see, e. g., Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) (en banc) ; DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973), no such contention appears to be raised here. However, even if it could be argued that constitutional contentions are implicit in the appellants’ brief, the bulk of the cases that have dealt with these considerations both in this circuit, Porcelli v. Titus, supra; Contractors Ass’n v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971); Commonwealth of Pennsylvania v. Sebastian, 368 F.Supp. 854 (W.D.Pa., filed Dec. 1, 1972) (unreported), aff’d by judgment order, 480 F.2d 917 (3d Cir. filed June 7, 1973), and elsewhere, see, e. g., Bridgeport Guardians, Inc. v. Civil Service Comm’n, supra; Carter v. Gallagher, supra; DeFunis v. Odegaard, supra, have upheld the constitutionality of the use of quotas to eliminate the effects of discrimination. Since the disparity between blacks on the police force (1.4%) and blacks in Erie (6.8%) indicates that serious discriminatory effects are present here, this precedent would appear to be controlling on the question in any event.
. At the same time, we reject the appellees’ contention that the issue is moot. Since the affirmative relief ordered by the court has not yet been put into effect, the right of the Erie Human Relations Commission to compel proper implementation in a future proceeding before the district court turns on a determination of this issue.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_usc1sect
|
2000
|
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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Suzanne J. GOSS, Appellant in No. 83-1598 v. EXXON OFFICE SYSTEMS COMPANY, Appellant in No. 83-1557.
Nos. 83-1557, 83-1598.
United States Court of Appeals, Third Circuit.
Argued Aug. 6, 1984.
Decided Nov. 7, 1984.
Alan M. Lerner (argued), Jeffrey Ivan Pasek, Manya L. Kamerling, Philadelphia, Pa., for appellant/cross-appellee, Suzanne
J. Goss; Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., of counsel.
Frank H. Wright (argued), Grand & Es-trow, New York City, Walter M. Phillips, Jr., Philadelphia, Pa., Charles Beck, Exxon Enterprises, New York City, for appellee/cross-appellant, Exxon Office Systems Co.
Before SEITZ, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
Suzanne Goss appeals from a judgment in her favor in her suit charging her former employer, Exxon Office Systems Company [Exxon] with sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 20G0e et seq. (1976). She contends that the judgment in her favor, totaling $101,961.02, is inadequate. Exxon cross-appeals, conceding that Goss was subjected to sex discrimination, but contending that the trial. court erred, factually and legally, in concluding that such discrimination amounted to a constructive discharge, and in determining the amount of her damages. We affirm.
I.
Constructive Discharge
This court has not heretofore considered whether acts of discrimination in violation of Title VII can make working conditions so intolerable that a reasonable employee would be forced to resign. Classifying a termination as a constructive discharge rather than a voluntary quit has significant ramifications with respect to the scope of relief. The constructive discharge doctrine was first developed under the National Labor Relations Act, and is in that branch of labor law well established. See, e.g., NLRB v. Tricor Products, Inc., 636 F.2d 266, 271 (10th Cir.1980); J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494-95 (4th Cir.1972); NLRB v. Century Broadcasting Corp., 419 F.2d 771 (8th Cir.1969); Bausch & Lomb Optical Co. v. NLRB, 217 F.2d 575, 577 (2d Cir.1954); NLRB v. Saxe-Glassman Shoe Corp., 201 F.2d 238, 243 (1st Cir.1953). The courts of appeals which have addressed the question havé recognized the appropriateness of its application to the branch of labor law encompassed in Title VIL Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983); Irving v. Dubuque Packing Co., 689 F.2d 170, 173-74 (10th Cir.1982); Nolan v. Cleland, 686 F.2d 806, 812-15 (9th Cir.1982); Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982); Clark v. Marsh, 665 F.2d 1168, 1174-76 (D.C.Cir.1981); Meyer v. Brown & Root Const. Co., 661 F.2d 369, 372 (5th Cir.1981); Welch v. University of Texas and Its Marine Science Institute, 659 F.2d 531, 533-34 (5th Cir.1981); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981); Pittman v. Hattiesburg Municipal Separate School District, 644 F.2d 1071, 1077 (5th Cir.1981); Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir.1980); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977); Jacobs v. Martin Sweets Co., Inc., 550 F.2d 364, 369 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977); Thompson v. McDonnell Douglas Corp., 552 F.2d 220, 223 (8th Cir.1977); Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975).
But while the application of the constructive discharge doctrine to Title VII cases has received apparently universal recognition among the courts of appeals which have addressed that issue, there is a divergence of opinion as to the findings necessary for such application in specific instances. The Eighth Circuit Court of Appeals in Johnson v. Bunny Bread Co., supra, and the Tenth Circuit Court of Appeals in Muller v. United States Steel Co., supra, appear to have required a finding that the discrimination' complained of amounted to an intentional course of conduct calculated to force the victim’s resignation. Other courts have adopted an objective standard, requiring no more than a finding that the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable person in the employee’s shoes would resign. E.g. Held v. Gulf Oil Co., supra; Bourque v. Powell Electrical Mfg. Co., supra; Jacobs v. Martin Sweets Co., Inc., supra. We hold that no finding of a specific intent on the part of the employer to bring about a discharge is required for the application of the constructive discharge doctrine. The court need merely find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.
Exxon contends that the trial court’s finding of fact that Goss was constructively discharged is clearly erroneous. We conclude that it is not.
Goss, a married woman, was a successful sales representative for Exxon, with an attractive territory in Montgomery County, Pennsylvania. She was responsible for major accounts including Merck, Sharp & Dohme and McNeil Pharmaceuticals. In the spring of 1980 her supervisor, Robert Melchionni, interrogated her about whether she intended to have a family. She indicated the intention to have both a family and a career. Shortly thereafter she became pregnant, and Melchionni expressed his doubts about her ability to combine motherhood and a career. In July of 1980, Goss suffered a miscarriage, but returned to work with no loss of working time. In October 1980 she became pregnant again. In December of that year, after obtaining a large order from Merck, Sharp & Dohme, she had a meeting with Melchionni, who was verbally abusive, and who indicated that he was thinking of removing her from the Merck account. At the same meeting he questioned her further about the dual responsibilities of a career and motherhood, to such an extent that she began crying.
Oh December 23, 1980, Goss suffered a second miscarriage. She was ill for two weeks, but because of the year-end holidays missed only six work days. When she reported to work on January 5, 1981, she was told that she no longer would have her usual territory, but was being replaced by Richard Slaughter. Goss objected to the transfer, and pursued her complaint to higher levels in Exxon, in accordance with that company’s “open door” policy. After several meetings she was given a new territorial assignment, and was told to either sign a writing accepting that assignment or resign.
The court found that Richard Slaughter had been promised a lucrative sales territory as part of an inducement for the transfer of Slaughter’s wife, Lisa, also an Exxon employee, from Houston, Texas, to Philadelphia. The court also found that there were two available lucrative territories: one serviced by Tom Katona, and the other serviced by Goss. When Melchionni was asked to find a territory for Slaughter, he described Goss as a “wacko,” pregnant, and likely to leave. He was thereupon instructed to transfer Goss. These findings are amply supported by the credited testimony of Richard Lucia, an Exxon employee. On the basis of these findings the court concluded that in order to make room for Slaughter, the company sacrificed Goss rather than Katona, a male, and that this decision was based on Goss’ sex and pregnancy. That conclusion must be accepted here. Pullman Standard Co. v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).
Applying the objective, reasonable person test of which we approve, the court found that Goss was constructively discharged. The court found:
It is important in this regard to note the nature of plaintiff’s work. A positive mental attitude is essential to a sales representative’s performance, as the representative must be able to sell the employer’s products and the employer’s image to the public with confidence. By the end of the series of events described in the foregoing findings, plaintiff’s confidence in herself and her employer was shattered. Also, plaintiff’s compensation was based mostly on commissions, so that an offer of an inferior substitute territory was not simply an offer of inferior working conditions but of a substantial cut in pay. Plaintiffs efforts to obtain just treatment through defendant’s “open door” policy only made matters worse, as she encountered hostility and intimidation tactics at each successive level of management. For plaintiff, EOSC’s “open door” led directly to the street.
These findings are legally sufficient. They are, moreover, based upon credibility judgments. The court heard both the Exxon and the Goss witnesses, and credited the latter. It is clear, therefore, that Goss was entitled to a remedy not only for pre-termination sexual discrimination, but also for wrongful termination of her employment.
II. Liability for Back Pay
Goss submitted her resignation to Exxon on February 9,1981, effective February 28, 1981. By April 13, 1981, she had found employment, at a lower income, with Data Point Corporation. She left Data Point at the end of May, 1982 to work for Agency Automation Services in June, still at a lower income level than at Exxon. Finally, in January, 1983, she obtained her present employment with Hewlitt Packard Corporation. The court calculated a back pay award of $78,454.23. Included in that award are lost commissions between January 5, 1981 and February 23, 1981, when she was on Exxon’s payroll without a new territory. The court also found that she incurred $850 in compensable job search expenses as a result of Exxon’s constructive discharge. Finally, the court found that Goss’ estimate that she would have earned $117,165.71 in commissions between February 24, 1981 and June 30, 1983 was fair and reasonable. From these sums were deducted her actual earnings, from February 24,1981 through June 30,1983 of $55,554.47, for a net back pay award of $78,454.23, to which was added prejudgment interest at 12% per annum.
Exxon objects to the foregoing calculation on two grounds. First, Exxon disputes the court’s selection of 1981 as the base year for calculating her likely earnings, because in that year sales territories had to be reassigned as a result of a reorganization. Exxon therefore urges that some average from prior years should have been utilized. We reject this contention. The risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931). Exxon failed to convince the factfinder that its lower projection was reasonable. Exxon also maintains that the court erred in rejecting its contention that Goss had failed to mitigate damages. The contention is in part predicated on Exxon’s objection to the court’s constructive discharge finding, which we have affirmed. Exxon argued that Goss failed to mitigate damages by removing herself from consideration for a position with Lexitron, which might have paid more than her projected earnings with Exxon, prior to accepting employment at Data Point Corporation. The court found that Exxon, which had the burden of proof on mitigation, failed to prove that she would have earned more at Lexitron or that she ought to have gone to work there despite personal misgivings about that company. These findings are not clearly erroneous.
Thus we conclude that the judgment against Exxon for $78,454.23 in back pay, through June 30, 1983, plus interest, must be affirmed.
III. Front Pay
Goss also sought, in lieu of reinstatement, what in Title VII litigation has been commonly referred to as front pay: that is, an award for a reasonable future period required for the victim to reestablish her rightful place in the job market. Goss sought such an award through the end of 1987. Exxon contended that no such award should be given. The trial court concluded that a front pay award should be limited to the four month period between June 30, 1983 and the time she would be sent out into the field as a sales representative for her current employer, Hewlitt Packard Corporation. The court awarded the difference between her present base pay and the estimated top earnings of Hewlitt sales representatives, a sum of $12,523.20. Both Exxon and Goss object to this award.
(1) Exxon’s Objection to Front Pay
Exxon urges that the court erred both factually and legally in awarding front pay. Exxon’s factual argument, however, is predicated upon the same objections about mitigation of damages which we have rejected in Part II, supra. We need not discuss them further here.
The award of future lost earnings in Title VII cases is an alternative to the traditional equitable remedy of reinstatement. See White v. Carolina Paperboard Corp., 564 F.2d 1073, 1091 (4th Cir.1977); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 949-50 (10th Cir.1979). The choice of such a remedy in lieu of an order that the plaintiff be reinstated rests in the sound discretion of the trial court. Dillon v. Coles, 746 F.2d 998 (3d Cir.1984). The trial court explained:
I do not believe that either plaintiff or defendant would seriously contend that it would be sensible to order plaintiff reinstated to a job in which harmonious working relationships are so important after the acrimony this case has engendered, nor could I possibly draft an injunctive order that would effectively make the existing ill feelings disappear. I will therefore consider plaintiff’s front pay claim.
The court applied correct legal standards— the likelihood of continuing disharmony in a sensitive job and the difficulty of policing an ongoing relationship — and we find no abuse of discretion in the choice of remedy.
(2) Goss’ Objection to the j Month Limitation
Goss contends that the trial court erred in limiting the front pay remedy to four months. She urges that this limitation requires her to bear the risk that with her new employer’s products she will be less successful in the marketplace than she had been with Exxon. In justifying the limitation, the court observed:
I believe it would require excessive speculation to make such an award for the period claimed in this case, for the .following reasons. Compensation in the sales business depends on a number of factors other than the individual salesperson’s ability. A variety of economic factors affect customers’ ability and willingness to buy; competing companies develop new technology at different rates. It is possible to compute plaintiff’s lost back pay with a reasonable degree of certainty by comparing her actual earnings to the actual earnings of defendant’s more successful sales representatives during the same period of time. The actual earnings of those representatives for the years in question demonstrate how much even a top-flight sales person’s compensation can vary from one time period to another. There is no evidence from which I can make a reasonable projection of how defendant’s business will do relative to that of plaintiff’s current employer over the coming years. Moreover, I am asked to award front pay through the end of 1987 on the basis of plaintiff’s conclusory statement that it will take her that long to reach her rightful place by staying with her current employer. No foundation was laid in the evidence for this statement. For all I know, the number was based on sheer guesswork. Finally, in November of this year, plaintiff will be going out into the field for her current employer and will begin earning commissions. If she does well — and there is every reason to believe she will do superbly — her earnings may soon meet or exceed the best she might have obtained by staying with the defendant.
To the extent that these observations are factual, the court’s findings are not clearly erroneous. In selecting a cut-off date for an equitable front pay remedy the court exercises discretion. We find no abuse of that discretion.
Thus we conclude that the judgment awarding Goss $12,523.20 -in front pay in lieu of reinstatement must be affirmed.
IV. Conclusion
In both appeals the judgment appealed from will be affirmed.
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 42? Answer with a number.
Answer:
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sc_jurisdiction
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify 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.
MELENDEZ v. UNITED STATES
No. 95-5661.
Argued February 27, 1996
Decided June 17, 1996
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, and in which O’Connor and Breyer, JJ., joined as to Parts I and II. Souter, J., filed a concurring opinion, post, p. 131. Stevens, J., filed an opinion concurring in the judgment, post, p. 132. Breyer, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 132.
Patrick A. Mullin argued the cause for petitioner. With him on the briefs were David Zlotnick and Peter Goldberger.
Irving L. Gornstein argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.
Alan I. Horowitz, James R. Lovelace, and Barbara E. Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Chester M. Keller filed a brief for the Association of Criminal Defense Lawyers in New Jersey as amicus curiae.
Justice Thomas
delivered the opinion of the Court.
The issue here is whether a Government motion attesting to the defendant’s substantial assistance in a criminal investigation and requesting that the district court depart below the minimum of the applicable sentencing range under the Sentencing Guidelines also permits the district court to depart below any statutory minimum sentence. We hold that it does not.
I
Petitioner and several others entered into an agreement to buy cocaine from confidential informants of the United States Customs Service. As a result, petitioner was charged with conspiring to distribute and to possess with intent to distribute more than five kilograms of cocaine, see §406, 84 Stat. 1265, as amended, 21 U. S. C. §846, a crime that carries a statutory minimum sentence of 10 years’ imprisonment, see § 841(b)(1)(A). Plea negotiations ensued, and petitioner ultimately signed a cooperating plea agreement. The agreement provided, in pertinent part, that in return for petitioner’s cooperation with the Government’s investigation and his guilty plea, the Government would “move the sentencing court, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable guideline range.” App. 9. The agreement noted that the offense to which petitioner would plead guilty “carries a statutory mandatory minimum penalty of 10 years’ imprisonment.” Id., at 6. The agreement did not require the Government to authorize the District Court to impose a sentence below the statutory minimum, nor did it specifically state that the Government would oppose departure below the statutory minimum.
Petitioner pleaded guilty to the charged conspiracy. The probation officer determined that the Guideline sentencing range applicable to petitioner’s crime was 135 to 168 months’ imprisonment. In a letter to the court, the Government described the assistance rendered by petitioner and moved the court to impose “a sentence lower than what the [c]ourt ha[d] determined to be the otherwise applicable [sic] under the sentencing guidelines.” Id., at 13-14. The letter specifically noted that “[t]his motion is made pursuant to Section 5K1.1.” Id., at 13. The Government did not request a sentence below the statutory minimum, although, again, it did not state that the Government opposed such a departure. The District Court granted the Government’s motion and departed downward from the sentencing range set by the Guidelines. However, because the Government had not also moved the District Court to depart below the statutory minimum pursuant to 18 U. S. C. § 3553(e), the court ruled that it had no authority to so depart; it thus imposed the 10-year minimum sentence required by statute.
On appeal, petitioner contended that the District Court had erred in concluding that it had no authority to depart below the statutory minimum. A § 5K1.1 motion, he argued, not only allows the court to depart downward from the sentencing level set by the Guidelines but also permits the court to depart below a lower statutory minimum. See United States Sentencing Commission, Guidelines Manual §5K1.1, p. s. (Nov. 1995) (USSG). A divided panel of the Court of Appeals for the Third Circuit rejected that argument and affirmed the 10-year sentence. 55 F. 3d 130 (1995). A petition for rehearing was denied, with six judges dissenting.
As we noted in Wade v. United States, 504 U. S. 181, 185 (1992), the Courts of Appeals disagree as to whether a Government motion attesting to the defendant’s substantial assistance and requesting that the district court depart below the minimum of the applicable sentencing range under the Guidelines also permits the district court to depart below any statutory minimum.
We granted certiorari to resolve the conflict. 516 U. S. 963 (1995). We now hold that such a motion does not authorize a departure below a lower statutory minimum.
II
The question presented involves two subsections of federal statutes and a policy statement of the Guidelines. Title 18 U. S. C. § 3553(e) provides:
“Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.”
Title 28 U. S. C. § 994(n), in turn, states:
“The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”
Finally, the text of § 5K1.1 of the Guidelines provides:
“Substantial Assistance to Authorities (Policy Statement)
“Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
“(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: [List of five factors for the court’s consideration, including] the government’s evaluation of the assistance rendered.”
Petitioner argues that §5K1.1 creates what he calls a “unitary” motion system, in which a motion attesting to the substantial assistance of the defendant and requesting a departure below the Guidelines range also permits a district court to depart below the statutory minimum. The Government views § 5K1.1 as establishing a binary motion system, which permits the Government to authorize a departure below the Guidelines range while withholding from the court the authority to depart below a lower statutory minimum. The parties argue, naturally, that their respective interpretations of the system actually adopted by the Sentencing Commission were permissible ones under §3553(e).and §994(n).
We believe that § 3553(e) requires a Government motion requesting or authorizing the district court to “impose a sentence below a level established by statute as minimum sentence” before the court may impose such a sentence. Petitioner and his amici repeatedly characterize the motion required by § 3553(e) as a “motion that substantial assistance has occurred,” Brief for Petitioner 12, a “motion acknowledging the defendant’s ‘substantial assistance,’ ” id., at 8, and the like. But the term “motion” generally means “[a]n application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant.” Black’s Law Dictionary 1013 (6th ed. 1990). Papers simply “acknowledging” substantial assistance are not sufficient if they do not indicate desire for, or consent to, a sentence below the statutory minimum.
Of course, the Government did more than simply “acknowledge” substantial assistance here: It moved the court to impose a sentence below the Guideline range. But we agree with the Government that nothing in § 3553(e) suggests that a district court has power to impose a sentence below the statutory minimum to reflect a defendant’s cooperation when the Government has not authorized such a sentence, but has instead moved for a departure only from the applicable Guidelines range. Nor does anything in § 3553(e) or § 994(n) suggest that the Commission itself may dispense with § 3553(e)’s motion requirement or, alternatively, “deem” a motion requesting or authorizing different action — such as a departure below the Guidelines minimum — to be a motion authorizing the district court to depart below the statutory minimum.
Moreover, we do not read § 5K1.1 as attempting to exercise this nonexistent authority. Section 5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines,” while its Application Note 1 says: “Under circumstances set forth in 18 U. S. C. § 3553(e) and 28 U. S. C. § 994(n). .. substantial assistance .. . may justify a sentence below a statutorily required minimum sentence,” §5K1.1, comment., n. 1. One of the circumstances set forth in § 3553(e) is, as we have explained previously, that the Government has authorized the court to impose a sentence below the statutory minimum.
Petitioner and his amici argue that § 3553(e) requires a sentence below the statutory minimum to be imposed in “accordance” with the Guidelines; that § 994(n) specifically directs the Commission to draft a provision covering substantial assistance cases, including cases in which a sentence below a statutory minimum is warranted; and that if §5K1.1 is not read as creating a unitary motion system, then the Commission has improperly failed to meet its obligation, because no other provision of the Guidelines implements § 3553(e) and § 994(n). They also argue' (1) that the reference to § 3553(e) in §5Kl.Ts Application Note 1 indicates that § 5K1.1 is a “conduit” established by the Commission for “implementation” of § 3553(e); (2) that Application Note 2’s use of the broad term “sentencing reduction,” rather than “departure from the guidelines range,” supports petitioner’s view that §5K1.1 authorizes departures below a statutory minimum; (3) that Application Note 3 makes sense only on the assumption that the district court retains “full discretionary power” over the extent of the sentencing reduction (i. e., the authority to choose any sentence once the Government makes any motion confirming the defendant’s substantial assistance); (4) that the reference to §5K1.1 alone (rather than to § 3553(e)) in USSG §2Dl.l’s Application Note 7 further supports petitioner’s claim that § 5K1.1 is a conduit for implementation of § 3553(e); and (5) that if the factors described in §5Kl.l(a) limiting the district court’s discretion do not apply to sentences imposed after the Government moves to depart below the statutory minimum, then the district court’s discretion will be wholly unlimited in those circumstances.
In the Government’s view, § 3553(e) already gives the district court authority to depart below the statutory minimum on motion to do so by the prosecutor. The Government urges us to read the last sentence of § 3553(e), and the inclusion of the phrase “including a sentence that is lower than that established by statute as a minimum sentence” in § 994(n), as merely requiring the Commission to constrain the district court’s discretion in choosing a sentence after the Government moves to depart below the statutory minimum. The Government contends that the first paragraph of § 5K1.1 does not authorize departures below the statutory minimum, but that § 5Kl.l(a) does apply to sentences imposed after the Government moves to depart below the statutory minimum (as well as to sentences imposed after the Government moves to depart below the Guidelines range); §5Kl.l(a) thus implements the requirements of § 3553(e) and §994(n) that relate to sentences below the statutory minimum, by requiring the district court to consider the factors listed in §§5Kl.l(a)(])-(5) in determining the appropriate extent of a departure below the statutory minimum. According to the Government, the difficulties and gaps referred to by petitioner vanish once §5Kl.l(a) is so construed.
We agree with the Government that the relevant parts of the statutes merely charge the Commission with constraining the district court’s discretion in choosing a specific sentence after the Government moves for a departure below the statutory minimum. Congress did not charge the Commission with “implementing” §3553(e)’s Government motion requirement, beyond adopting provisions constraining the district court’s discretion regarding the particular sentence selected.
Although the various relevant Guidelines provisions invoked by the parties could certainly be clearer, we also believe that the Government’s interpretation of the current provisions is the better one. Section 5Kl.l(a) may guide the district court when it selects a sentence below the statutory minimum, as well as when it selects a sentence below the Guidelines range. The Commission has not, however, improperly attempted to dispense with or modify the requirement for a departure below the statutory minimum spelled out in § 3553(e) — that of a Government motion requesting or authorizing a departure below the statutory minimum.
The Government has made no such motion here. Hence, the District Court correctly concluded that it lacked the authority to sentence petitioner to less than 10 years’ imprisonment.
Ill
What is at stake in the long run is whether the Government can make a motion authorizing the district court to depart below the Guidelines range but withholding from the district court the power to depart below the statutory minimum. Although the Government contends correctly that the Commission does not have authority to “deem” a Government motion that does not authorize a departure below the statutory minimum to be one that does authorize such a departure, the Government apparently reads § 994(n) to permit the Commission to construct a unitary motion system by adjusting the requirements for a departure below the Guidelines minimum — that is, by providing that the district cou,rt may depart below the Guidelines range only when the Government is willing to authorize the court to depart below the statutory minimum, if the court finds that to be appropriate. See Tr. of Oral Arg. 26-31.
We need not decide whether the Commission could create this second type of unitary motion system, for two reasons. First, even if the Commission had done so, that would not help petitioner, since the Government has not authorized a departure below the statutory minimum here. Second, we agree with the Government that the Commission has not adopted this type of unitary motion system. Neither the text of §5K1.1 nor its commentary expressly limits the authority of the court to depart below the Guidelines minimum to situations in which the Government has moved to depart below the statutory minimum. The text of §5K1.1 says: “Upon motion of the government stating that the defendant has provided substantial assistance . . . , the court may depart from the guidelines.” We do not read this sentence to say: “Upon motion of the government stating that the defendant has provided substantial assistance ... and authorizing the court to depart below the statutory minimum, if any, the court may depart from the guidelines.” Rather, we read it as permitting the district court to depart below the Guidelines range when the Government states that the defendant has provided substantial assistance and requests or authorizes the district court to depart below the Guidelines range. As we have noted, supra, at 127-130, the Application Notes to §5K1.1 and §2D1.1 do not compel any other reading.
The judgment is affirmed.
It is so ordered.
Compare 55 F. 3d 130 (CA3 1995) and United States v. Rodriguez-Morales, 958 F. 2d 1441 (CA8), cert. denied, 506 U. S. 940 (1992), with United States v. Ah-Kai, 951 F. 2d 490 (CA2 1991), United States v. Beckett, 996 F. 2d 70 (CA5 1993), United States v. Wills, 35 F. 3d 1192 (CA7 1994), and United States v. Keene, 933 F. 2d 711 (CA9 1991).
Petitioner also argues for the first time in his reply brief that the plea agreement into which he entered was at least ambiguous with respect to whether it required the Government to move the District Court to depart below the statutory minimum — and thus that the agreement itself permitted the court to depart below the 10-year minimum. See Reply Brief for Petitioner 7-8. We do not view this issue as included within the question upon which we granted certiorari, see Pet. for Cert. 3 (“Did the sentencing court have the discretion to depart below the applicable statutory minimum once the United States moved for departure under USSG §5K1, without the requirement of a second government departure application under 18 U. S. C. 3553(e)?”), and petitioner appears to concede that it is not, see Tr. of Oral Arg. 15. We therefore decline to address the argument.
Although it is plain that under § 994(n), the Commission was at least authorized to create a system in which no Government motion of any kind need be filed before the district court may depart below the Guidelines minimum, neither party argues that the Commission has created such a system.
See also Random House Dictionary of the English Language 1254 (2d ed. 1987) (defining “motion” in the legal sense as “an application made to a court or judge for an order, ruling, or the like”); Wade v. United States, 504 U. S. 181, 187 (1992) (“[Substantial assistance] is a necessary condition for [a departure, but] it is not a sufficient one. The Government’s decision not to move may have been based not on a failure to acknowledge or appreciate [the defendant’s] help, but simply on its rational assessment of the cost and benefit that would flow from moving”).
We do not mean to imply, of course, that specific language (such as that quoted in text) or, on the other hand, an express reference to § 3553(e) is necessarily required before a court may depart below the statutory minimum. Cf. Brief for Petitioner 5-6, 18, 32, 34 (characterizing the opposing argument in this fashion). But the Government must in some way indicate its desire or consent that the court depart below the statutory minimum before the court may do so.
Application Note 2 provides in relevant part: “The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility.” USSG § 5K1.1, comment., n. 2.
Application Note 3 provides: “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG §5K1.1, comment., n. 3.
Application Note 7 provides in pertinent part: “Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence may be ‘waived’ and a lower sentence imposed (including a sentence below the applicable guideline range), as provided in 28 U. S. C. § 994(n), by reason of a defendant’s ‘substantial assistance in the investigation or prosecution of another person who has committed an offense.’ See §5K1.1 (Substantial Assistance to Authorities).” USSG §2D1.1, comment., n. 7. Section 2D1.1 is a Guideline addressed to a variety of drug offenses.
Notably, § 3553(e) states that the “sentence” shall be imposed in accordance with the Guidelines and policy statements, not that the “departure” shall occur, or shall be authorized, in accordance with the Guidelines and policy statements.
Section §5Kl.l(a) may apply of its own force to sentences below the statutory minimum, see ibid, (providing that the district court shall determine “[tjhe appropriate reduction” by applying a nonexhaustive list of factors), and both the reference to § 3553(e) in §5Kl.l’s Application Note 1 and the reference to §5K1.1 in §2Dl.l’s Application Note 7 may reflect that fact. Or perhaps the phrase “[t]he appropriate reduction” in §5Kl.l(a) encompasses only departures below the Guidelines range, but the Application Notes are meant to suggest that the court should also consider the § 5Kl.l(a) factors in the analogous circumstance of a departure below the statutory minimum.
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_caseorigin
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028
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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.
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. KIZER, DIRECTOR OF CALIFORNIA DEPARTMENT OF HEALTH SERVICES, et al.
No. 86-863.
Argued November 10, 1987
Decided March 23, 1988
Deputy Solicitor General Merrill argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Jerrold J. Ganzfried, and Richard Olderman.
Ralph Johnson, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were John K. Van de Kamp, Attorney General, and Evelyn R. Frank.
Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by Lacy H. Thornburg, Attorney General of North Carolina, and Henry T. Rosser, Assistant Attorney General, joined by the Attorneys General for their respective States as follows: W. J. Michael Cody of Tennessee, Nicholas J. Spaeth of North Dakota, Jeffrey L. Amestoy of Vermont, Hubert H. Humphrey III of Minnesota, J. Joseph Curran, Jr., of Maryland, Robert M. Spire of Nebraska, and Ken Eikenberry of Washington; and for the California Association of Public Hospitals et al. by Mark S. Windisch.
Per Curiam.
We granted the Secretary of Health and Human Services’ petition for certiorari, 479 U. S. 1083 (1987), in order to review the judgment of the Court of Appeals for the Ninth Circuit that the Secretary unlawfully rejected a California Medicaid plan amendment because an internal agency manual stating approval of the type of provision in question was a binding regulation, and because acceptance of the amendment was required by § 2373(c) of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 1112, note following 42 U. S. C. § 1396a (1982 ed., Supp. III). Cubanski v. Heckler, 781 F. 2d 1421 (1986). After the case had been briefed and argued, Congress enacted § 4106 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330, which required the Secretary to approve the proposed California amendment, retroactively to the date of its proposal. The Secretary has complied with that requirement.
The parties agree that these developments have rendered the controversy moot. In accordance with our established practice, we vacate the judgment of the Ninth Circuit and remand with instructions to dismiss the suit. See Deakins v. Monaghan, 484 U. S. 193, 200, 204 (1988); United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950).
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
Question: What is the court in which the case originated?
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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
212. United States Supreme Court
Answer:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to 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.
BRITISH-AMERICAN OIL PRODUCING CO. v. BALTIMORE TRUST CO. et al.
No. 4492.
Circuit Court of Appeals, Fourth Circuit.
June 21, 1939.
Valjean Biddison, of Tulsa, Okl. (Hilary W. Cans, Joseph T. Brennan, and Brown & Bruñe, all of Baltimore, Md., on the brief), for appellant.
G. Ridgely Sappington, of Baltimore, Md. (J. Cookman Boyd, J. Cookman Boyd, Jr., and D. Heyward Hamilton, Jr., all of Baltimore, Md., on the brief), for appellees.
Before PARKER and SOPER, Circuit Judges, and HENRY H. WATKINS, District Judge.
PER CURIAM.
This case turns upon the interpretation of a contract of December 30, 1929 whereby the Interocean Oil Company agreed to sell to the British American Oil Producing Company certain oil producing property for the sum of $900,000. The seller agreed to pay the obligations of itself and certain predecessors in title, and to discharge and free the property from liens. It was agreed that the parties should cause to be deposited in a bank, together with a copy of the contract, the sum of $75,000 out of the total money consideration, the sum deposited to remain in escrow for a period of ninety days as a guarantee for the payment of the obligations of the seller, the said sum of $75,000 to be at all times available to a vice president of the seller for the payment of obligations incurred in the use, development and operation of the property prior to December 1, 1929.
During the ninety day period, obligations of the seller in the aggregate amount of $37,313.18 were paid out of the deposit, and at the expiration of the escrow period, the balance thereof was paid to the trustee to whom the seller had previously conveyed its property to secure an issue of 7% bonds in the amount of $2,000,00(), of which $1,850,000 were outstanding and unpaid when the present controversy arose. This trustee, by endorsement on the contract, consented thereto and agreed to release the property upon the payment to it of the purchase price of $900,000, subject, however, to the contract provision above, set forth as to the $75,000. The balance of $37,686.82, remaining after the expiration of the ninety day period, was paid on demand by the vice president of the seller to the trustee; and thereafter, at the request of the vice president, who had in the meantime become an employee of the buyer, the trustee agreed to hold the fund of $75,000 for a further period of ninety days during which period some additional payments were made, and after the expiration of the extended period, certain other payments were made, the last on July 14, 1930. It does not appear by what authority the trustee made these payments.
Thereafter, the balance of the fund amounting to $31,058.70 was retained by the trustee, and rémained in its hands on the 26th day of june, 1933, when this matter was brought to the attention of the court by the petition of the buyer.. The buyer claims that it is entitled to receive this fund by reason of certain obligations of the seller, which matured or were definitely ascertained subsequent to the last payment by the trustee out of the fund as aforesaid. The basis of the buyer’s claim in substance is that it was the intention of the parties to the contract that the fund should be used for the payment of the obligations of the seller not only during but after the expiration of the ninety day period, because the contract provided that the fund should be at all times available to the vice president of the seller for this purpose. We are in accord with the conclusions of the District Judge, Baltimore Trust Co. v. Interocean Oil Co., D.C., 26 F.Supp. 817, 818, that this is not a proper interpretation of the contract, but that the phrase “at all times available” must be read in connection with the phrase “for a period of ninety (90) days from December 21, 1929” which appears in the same clause of the contract. In other words, it was the intention of the parties that the fund was to be available to the vice president of the seller for the payment of obligations at all times during the period of ninety days. Thus considered, the provision of the contract does not present any ambiguity, and that it is a reasonable provision sufficiently appears from the fact that the contract was made subject to the consent of the trustee in the bond mortgage. It cannot be supposed that the trustee, as representative of the bondholders, would consent to the retention of the fund in escrow for a period of time that was indefinite and without limit. The evidence shows that the buyer was not only safeguarded by the deposit of the fund of $75,000 for this period, but also by the fact that at the time of the sale, the seller was regarded as solvent.
While we regard the clause of the contract under consideration as free from ambiguity, we are also of the opinion, for the reasons given by the District Judge, that the circumstances under which the contract was made indicate that it was the intention of the parties that the fund in escrow should be held for the period of ninety days, and thereafter paid to the trustee for the benefit of the bondholders.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Floyd MEREDITH, Appellant, v. Robert T. GAVIN and New Hampshire Insurance Company, Appellees.
No. 20698.
United States Court of Appeals, Eighth Circuit.
July 6, 1971.
See also, D.C., 51 F.R.D. 5.
L. R. Magee, John E. Redmond, Kansas City, Mo., for appellant.
William H. Sanders, David C. Trow-bridge, Kansas City, Mo., for appellees; Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., of counsel.
Before MATTHES, Chief Judge, GIBSON, Circuit Judge, and HENLEY, District Judge.
Chief Judge, United States District Court, Eastern District of Arkansas, sitting by designation.
GIBSON, Circuit Judge.
This is an appeal by plaintiff Floyd Meredith from a judgment entered in the Western District of Missouri in favor of the defendants Robert Gavin and New Hampshire Insurance Company, following a jury verdict of no liability on a complaint based on 18 U.S.C. § 2520 of the federal wiretap laws. The plaintiff contends for a directed verdict on liability. We disagree and affirm the judgment of the District Court.
The facts of the controversy are as follows. Sometime in December 1968 or January 1969, plaintiff began to suffer from a painful hip ailment. He claimed it was from an accident suffered on his job, and made a workmen’s compensation claim. The defendant New Hampshire Insurance Company (Company) was his employer’s workmen’s compensation insurer and defendant Gavin was the Company’s claims manager. The claim came to their attention on February 8, 1969. After investigation and some attempts at compromising the claim, the Company resisted payment on the ground that plaintiff’s injury did not arise from a work-connected accident. It reached this determination on the basis of a statement taken by its investigator from the plaintiff on February 4. The statement, written by the investigator but not signed by the plaintiff, read in part: “While I was loading, my left hip pulled loose or something. The leaders in my hip pulled loose or something. It happened while I was loading the pick-up. I don’t know whether my foot slipped or not. I just got a catch in my left hip.” On the basis of this statement, the defendant insurer claimed that plaintiff’s injury was caused by the ordinary strain of lifting heavy objects and not by an accident on the job, and therefore was not compen-sable.
The parties communicated a number of times concerning plaintiff’s claim. On February 28, 1969, plaintiff called defendant Gavin on the telephone to inquire again why his claim wasn’t being paid. Gavin switched on his dictaphone machine, without plaintiff’s knowledge, to record the conversation. In the course of the conversation, defendant Gavin read the statement to the plaintiff and asked him if he had made that statement to the investigator. Plaintiff allegedly answered yes. Gavin claims that he recorded the conversation because he is a “one-man claims department” for the insurance company, he handles approximately 700 claims per month, and it is necessary to keep accurate records of all conversations with claimants in order to know exactly what commitments have been made.
Thereafter, the defendant made certain medical and compensation payments to plaintiff. In May 1969, plaintiff filed a workmen’s compensation claim, which was heard in January 1970. The Company contended there was no com-pensable injury. The plaintiff testified that he had suffered his injury when his foot slipped on some debris on the floor. He denied making the statement to the investigator, denied ever seeing the statement, and denied that the defendant Gavin had read the statement to him over the phone and that he had acknowledged making it. However, he admitted talking to the defendant on the phone.
Defendant Gavin then testified over plaintiff’s objection to the substance of the conversation, stating that he read the statement to plaintiff and plaintiff acknowledged making it. Following this testimony, defendant’s attorney disclosed the unconsented recording made by participant Gavin and said: “I would like to say this: It will take about fifteen minutes to play the belt. I have not gone into this extensively but I have a dictaphone here and if you want to listen to the entire thing, it is available.” The dictaphone belt was not offered into evidence or played at the hearing. The workmen’s compensation referee entered an award in favor of plaintiff of 15 per cent of the body as a whole.
Plaintiff then instituted the instant suit, claiming that defendant’s recording of the telephone conversation and its subsequent “use” at the workmen’s compensation hearing violated the federal wiretap laws, 18 U.S.C. §§ 2510 et seq.
The plaintiff contends that the recording of the conversation was an “interception” within the meaning of § 2510(4) and therefore it was a violation of the statute, that even if the interception wasn’t a violation of the Act, its subsequent use and disclosure was, and therefore he is entitled to a directed verdict as to liability and minimum damages of $1000 as provided by § 2520 of the statute.
While the defendants apparently admit that the recording constituted an interception within the definition of the Act, they contend that the interception was not unlawful under the provisions of § 2511(2) (d), and that there was no subsequent use of the recording within the meaning of the Act which would provide a basis for liability.
Since concededly no criminal or tor-tious act is involved, the specific question before us is whether the conversation was intercepted “for the purpose of committing any * * * injurious act” under § 2511(2) (d). In order to answer this question, we look to the legislative history of the statute.
It is to be observed that § 2511(1) of the statute outlaws all interception, use, or disclosure of oral or wire communications. Standing by itself, this prohibition would apply to any interception, use, or disclosure by or with the consent of one of the parties to the communication, as well as by third parties. Such a provision would of course go considerably beyond existing law in this area. See, e. g., United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Congress however did not intend such a result, but provided in §§ 2511(2) (c) and (d) that certain interceptions with the consent of one of the parties to the communication would not be unlawful.
As originally proposed, the statute exempted from its prohibition any interception where one of the parties to the communication consented. 2 U. S. Code Cong. & Admin. News, 90th Cong., 2d Sess. 2182 (1968). This particular provision was strongly objected to by Senator Hart, who made the following observations with respect to it:
“Section 2511(2) (c) of title III completely exempts all consensual wiretapping and eavesdropping from the provisions of the title. So long as at least one of the parties to a conversation has consented to its interception, title III is inapplicable.
“Thus, although the title contains blanket prohibitions on all ‘third-party’ (‘nonconsensual’) interception— that is, interceptions without the consent of at least one of the parties to a conversation — by private persons, and places strict controls on the use of such interception by law enforcement officers, it is totally permissive with respect to surreptitious monitoring of a conversation by a party to the conversation, even though the monitoring may be for insidious purposes such as blackmail, stealing business secrets, or other criminal or tortious acts in violation of Federal or State laws.
“The use of such outrageous practices is widespread today, and I believe they constitute a serious invasion of privacy.” 2 U. S. Code Cong. & Admin. News, 90th Cong., 2d Sess. 2236 (1968).
In order to meet these objections, Senators Hart and McClellan offered an amendment to the bill, substituting for the proposed subsection 2(c), the language of what are now subsections 2(c) and (d). The proposed amendment was enacted without change. 114 Cong. Rec. 14695 (May 23, 1968). The effect of the amendment is to bring within the prohibitions of the statute any interception, use or disclosure of oral or wire communications with the consent of one of the parties where the purpose is to commit any criminal, tortious, or injurious act.
The plaintiff contends that the purpose of the recording was to use it for impeachment purposes in the workmen’s compensation proceeding and that this constitutes an “injurious act.” We do not think so. A party to a conversation may testify to that conversation. He may protect himself and his credibility by recording the entire conversation, unless his purpose is evil- — that is, to commit or attempt a criminal or tortious act or injure the unsuspecting participant in some vague but illegitimate fashion. The defendants contend that the purpose of the recording was purely for record-keeping, so as to have a record of any commitments that were made, that it was not intended to be used in any subsequent proceeding and that it was not so used. This contention is not wholly correct as the disclosure of the recording at the workmen’s compensation hearing constituted a type of use.
There was little if any discussion in Congress on the meaning of the term “injurious act” within the framework of the reference to the prohibition against nonconsensual wiretaps or recordings by a participant in the conversation. Some vague reference was made to a use that would cause public embarrassment.
A perfectly legitimate act may often be injurious. A judgment at law can be injurious to the losing party. A bankruptcy case can injure creditors with scant resources. The resistance to unsupported claims could be injurious to the claimant. But all parties have a right to proceed under the law and to protect their own rights. The term is extremely vague and broad and certainly Congress could not have intended to use the term in its literal context.
We do not believe that Congress intended to include within the scope of an “injurious act” the kind of conduct in question here. It does seem that by using the term “injurious act” in conjunction with “criminal and tortious acts”, it was intended to reach certain kinds of harmful conduct which might not strictly be criminal or tortious. The scope of such harmful conduct must be determined on a case-by-case basis. However, it seems apparent from the context in which the statute was enacted that the sort of conduct contemplated was an interception by a party to a conversation with an intent to use that interception against the non-consenting party in some harmful way and in a manner in which the offending party had no right to proceed.
In the instant case, the proof in the record is more than adequate to support the jury verdict that the interception in question was not for such a purpose. Even were we to concede that the purpose of the recording was to use it for impeachment purposes, a fact which is by no means necessarily inferred from the record, this would not appear to be a violation of the Act. This use would have been to protect the defendants’ position, not to positively harm the plaintiff. Surely it could not be contended that the plaintiff was free to make one statement to the defendant Gavin over the phone, and then to make an entirely different one in the compensation proceedings, without fear of contradiction. The defendant Gavin was clearly competent to testify to the contents of the phone conversation, and we think that preserving the contents of the conversation on the recording in the circumstances of this case was not the sort of “injurious act” which the statute condemns.
The plaintiff also complains that the trial court only instructed the jury as to unlawful interception within the meaning of the Act, but failed to instruct them as to unlawful use and disclosure, which is also a basis for liability under the statute. We have examined the court’s instructions in this regard and find no error. The defendant contends that there was no use and disclosure of the recording because it was not offered into evidence nor was it played at the workmen’s compensation hearing. We reject this contention because we think that bringing the attention of the hearing examiner to the existence of the recording, coupled with the remark that it would corroborate the testimony of defendant Gavin constitutes a use and disclosure of the recording. However, we do not think this actionable under the statute. The sections of the statute which make unlawful the use and disclosure of recordings, §§ 2510(1) (c) and (d), refer only to interceptions obtained in violation of the Act. Since, as held above, the interception in the case was not obtained in violation of the Act, its subsequent use and disclosure was not a violation of the Act.
Finally the plaintiff complains that the court’s comments on the evidence were prejudicial. He points to no specific comments in this regard and we have thoroughly reviewed the trial court’s instructions and remarks in this respect and find this contention to be without merit.
The judgment is affirmed.
. The sections in question were enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, now found in 18 U.S.C. §§ 2510 et seq. Future references to section numbers will be to those in Title 18 U.S.C. and to the above Act.
. Section 2511(2) (d) provides as follows :
“It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.”
. Thus we perceive no Fourth Amendment problems in this case. Under the cases construing this amendment, plaintiff had no right to expect that the defendant Gavin would not record and possibly repeat the conversation. United States v. White, supra; Lopez v. United States, supra; United States v. DiLorenzo, 429 F.2d 216, 218 (2d Cir. 1970). Therefore, any right the plaintiff has to recover for the defendant’s actions derives from the statute, not from the Fourth Amendment.
. What are now subsections 2(c) and (d) of § 2511 was originally proposed as subsection 2(e) and read as follows :
“It shall not be unlawful under this Chapter for a party to any wire or oral communication, or a person given prior authority by a party to this communication to intercept such communication.” Senate Report No.1097, 90th Cong., 2d Sess. (1968), p. 12.
. Senator Hart in speaking on the proposed substitute, which was adopted as §§ 2511(2) (c) and (d), commented:
“In the substitute that is now pending we propose to prohibit a one-party consent tap, except for law-enforcement officials, and for private persons who act in a defensive fashion. * * * Such one-party consent is also prohibited when the party acts in any way with an intent to injure the other party to the conversation in any other way. For example, the secret consensual recording may be made for the purpose of blackmailing the other party, threatening him, or publicly embarrassing 1dm. * * * Nor does it prohibit such recording in other situations when the party acts out of a legitimate desire to protect liimself and his own conversations from later distortion or other unlawful or injurious uses by the other party.” (Emphasis supplied). 114 Cong.Ree. 14694-14695 (May 23, 1968).
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:
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songer_appel2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed 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".
MORSE-STARRETT PRODUCTS CO. et al. v. STANDARD AMERICAN WINDOW SAFETY DEVICE CO. et al.
No. 7232.
Circuit Court of Appeals, Seventh Circuit.
Oct. 31, 1940.
Lee J. Gary, of Chicago, 111., and Oscar A. Mellin, of Oakland, Cal., for appellants.
Max Richard Kraus* and Samuel L. Stein-berg, both of Chicago, 111., for appellees.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
KERNER, Circuit Judge.
This appeal is from a decree dismissing plaintiffs’ suit for infringement of the Steccone patent, Number 2,123,638, issued July 12, 1938, and disclosing a- window squeegee. The District Court held the patent invalid by reason of anticipation or for want of patentable invention in view of the prior art. Accordingly the court rendered judgment for the defendants and the plaintiffs appealed therefrom.
A squeegee is a window-washing tool which combines a handle, a rubber wiping blade, and a metal holder for the blade.' It is used by professional window washers in cleansing windows. First the window washer applies a cleaning fluid over the surface of the window and then he removes the fluid by using the squeegee. The device of the patent in suit shows a metal holder with handle projecting therefrom, a single flat rubber blade (having a sharp resilient wiping edge) removably anchored or gripped in the base of the metal holder, and one side of the metal holder curved outwardly to a point just short of the wiping edge of the blade. During use the blade is bent over the convex surface of the curved side of the holder and is there supported in proper wiping relation to the window surface.
The patentee claims the following invention:
“1. A squeegee comprising a resilient wiper blade, a member adapted to hold said blade, said member having a body portion which contains blade anchoring means and having a non-resilient portion extending from said body portion and terminating in a convex wiping edge supporting portion, the wiper blade being of elongated cross-section and attached at the anchoring portion and extending in the same general direction as the backing portion, and having a side wall facing said backing portion, the end portion of said wall being normally spaced from said supporting portion and so arranged that upon application of wiping force 'to the squeegee the outer portion of said wall will move into engagement with said convex portion and be limited in its movement thereby.
“2. A squeegee of the type defined in claim 1, wherein that portion of the backing member which extends from the body portion comprises a smoothly curved, convex surface, adapted to engage the wiper blade along its entire side wall and to have the curve of its face corresponding to the curve of the wiper blade when the latter is under a sufficient wiping pressure to bring the end portion of the wall into engagement with the supporting portion.”
The plaintiff Morse-Starrett Products Company, licensee of the pláintiff Ettore Steccone (patentee), manufactured the patented device late in 1938 and within a period of ten months thereafter had sold over 12,000 items. Sales were promoted by submitting samples-to big jobbers with the request that these samples be supplied to customers who would give the squeegee a fair trial. One of plaintiffs’ witnesses testified that “once a window cleaner has used our tool, he is very reluctant to go back to the old type of tool.” There is evidence however that the Steccone squeegee had not displaced other squeegees on the market. The accused device appeared on the market at the end of the year 1938. The defendants admitted that they employed a diemaker to duplicate the patented squeegee, having been advised by patent counsel that such action would not infringe any patents. When asked on cross-examination why the Steccone device was selected for duplication, the witness (one of the defendants) answered that its “lighter weight” appealed to him.
At the trial the plaintiffs adduced evidence tending to show that the patented device in question was superior to the squeegees then on the market. For comparison they introduced in evidence a competing squeegee of a type sold on the market for a long period of time. This particular tool differed from the patented device in the following respects: (1) it was heavier; (2) its blade had more height, that is, it projected a greater distance from its anchored base in the holder; and (3) the immediate backing portion adjacent to the blade and terminating just short of the wiping edge of the blade, was made of hard but flexible rubber. -
The plaintiffs’ testimony then associated two primary disadvantages with the competing squeegee, namely, (1) because the backing portion is flexible the wiping edge of the blade wears unevenly and hence wears out rapidly, and (2) considerable experience on the part of the user is required before a uniform cleansing result is obtained. The plaintiffs’ testimony concluded that the patented device eliminated these disadvantages and that this advance in the art was attributed to the unique method of supporting the blade during its use. As expressed by plaintiffs’ expert witness, the “principal advantages of this squeegee lie in the curved backing for the rubber * * * the rubber is anchored at the bottom of the curve and extends in a cradle bend over this metal backing.”
One of the defendants disputed the claimed superiority of the patented device. This witness had been in the cleaning business for 30 years and his partnership was then employing between 50 and 90 window washers. He stated that 65 percent of his employees preferred to use the competing squeegee and that the 35 percent of his employees who used the patented device did so “on account it is a little lighter.” He concluded that there was no difference in utility between the two tools, that the two devices did “approximately the same” work and that they both cleaned the windows effectively.
The defendants introduced in evidence prior art patents which disclosed combinations comprising' the elements found in the Steccone patent, namely, (1) a rubber blade, (2) a metal holder, (3) a means for anchoring the blade and (4) a backing support portion. It is sufficient to name the Prowense patent, Number 1,533,944, issued April 14, 1925, and covering a window or windshield cleaner; the Anderson patent, Number. 1,973,366, issued September 11, 1934, and covering a windshield wiper; the Lane patent, Number 948,631, issued February 8, 1910, and covering a window cleaner; the Brown patent, Number 592,-076, issued October 19, 1897, covering a window cleaner; and the Bourke patent, Number 355,298, issued January 4, 1887, and covering a window cleaner. In the Prowense patent the extension of the blade is the same as it is in the Steccone patent. The Lane and Bourke patents provide for the adjustment of the height of the bl'ade, that is, they provide for the moving in or out of the blade with respect to the curved backing portion. The Anderson, Lane and Brown patents disclose curved backing and the Anderson patent provides for a removable blade.
The plaintiffs’ expert witness sought to distinguish the prior art structures by showing that the backing support in the Steccone patent served a “different purpose.” He explained that the backing portion of the Prowense patent was not intended to support the rubber blade during use, whereas “On the Steccone patent the curve actually supports the rubber in a most efficient wiping position when it is in use.” He stated that in the Anderson patent the backing portion seryed “an entirely different purpose again than the Steccone.” As to the Lane patent it was explained that although the backing portion was “for reinforcing or stiffening the rubber while in use,” the portion was curved outwardly only in order “to prevent cutting the rubber where it bends backward.” The Bourke and Brown patents were not discussed by plaintiffs’ expert witness.
Of the patents described above all except the Prowense patent were cited by the Patent Office in connection with the prosecution of the Steccone patent therein. The file wrapper in the record indicates that Steccone started with five claims in the Patent Office, claims describing the backing support portion of the squeegee as being “curved away from said wiper portion in an arc corresponding to the natural curvature of said wiper portion when placed under working pressure, said curved side terminating just short of the working edge of said wiper portion.” The examiner rejected this claim as being unpatentable over Anderson in view of Lane or Bourke, stating that the “exact point of termination of these supporting members is merely a matter of degree, any of which could terminate in any relationship to the wiping edge of the squeegee if so desired, without involving invention.”
In this case no serious question is made regarding the issue of infringement. In effect the defendants admitted infringement and the point was not raised here. The only issue which we are called upon to decide, is whether the patent in suit is valid in view of the prior art patents. On this point the District Court held the Steccone patent invalid by reason of anticipation or for’ want of patentable invention in view of the prior art. The District Court also concluded that the plaintiffs had failed to prove the unfair competition cause of action alleged in the complaint. On this point which was not argued here, the court’s conclusion was correct.
Combination patents disclosing a rubber blade, a metal holder and a metal support for the blade, are old in the art. Nor is the substitution of a removable blade or of a convex curved support in such a combination, new in the art. We observe that the Steccone patent relates to a combination of old elements. In particular Steccone directs his attention to the curved backing support and the proper relation of this element to the rubber blade. This emphasis as to these two elements is obvious from a reading of the specification and claims of his patent. Moreover, at the trial plaintiffs’ expert witness discussed some of the prior art patents and he distinguished the Steccone patent on the ground that the backing support element of the prior art patents served an “entirely different purpose than the Steccone.” He added that “On the Steccone patent the curve actually supports the rubber in a most efficient wiping position when it is in use.”
If Steccone has added to the prior art that addition is confined to his emphasis relating to the support and blade elements. In this has Steccone discovered something unknown to, or not suggested by, the prior art patents? We think the answer is found in Bourke. The Bourke patent covered a window cleaner and disclosed the» elements already described. He stated that the object of his device was to provide the holder “with a depending bearing-flange, to form a support for the cleaning-strip when pressure is brought against it” and that the support 'element “forms a support for the rubber * * * to give it the required rigidity when pressure is brought against it in cleaning the window.”
Thus Bourke discloses the idea of a backing portion which like Steccone “actually supports the rubber * * * when it is in use” and its function is so stated in the patent. The same thing is true of the Brown patent which provides a backing portion curved in such a way that the rubber “may be brought into suitable relation with the surface to be cleaned,” and of the Lane patent which shows backing “for reenforcing or stiffening the rubber while in use.” It is true that Bourke does not claim a curved support but Brown does, and the Lane construction shows a curved portion. Of course Brown does not .claim a convex curve but his concave curve serves the same function that the convex curve serves in. the Steccone patent. Lane states that his curve serves to prevent the rubber from being cut as it bears against the curved portion, but it'is obvious that in operation the curved portion in Lane serves the same purpose as it does in the Steccone patent. The Anderson construction shows two convex curved portions and when the device is in action they support the blade.
In view of these prior art patents we are compelled to disagree with counsel that the patented construction is “unique” or that the patented device discloses a “novel support by the curved backing and the relationship of the supporting backing to the wiping edge.” Steccone’s claim to patentable invention lies in his arrangement of the backing and blade elements, yet this contribution adds little to what Bourke and Brown taught the art. Perhaps his particular construction, in terminating the support member at a certain point in its relationship to the wiping edge of the blade, constituted a more perfect tool than the competing tools on the market. Certainly this achievement is that of the artisan rather than that of the inventor. The possibility of greater excellence in such arrangement or adjustment, were legally embraced in the prior art patents.
Nor are we convinced on this record that the Steccone squeegee proved itself singularly beneficial to the class of< window washers. There is a conflict in the testimony as to the superiority in utility claimed* for Steccone over its competing squeegees, there is no evidence that Steccone supplied a long felt want, and there is no evidence that he succeeded in accomplishing a novel result where others had failed. The most that can be said is that according to the plaintiffs’ testimony, Steccone supplied a more perfect tool. But we are satisfied that he merely carried forward the original thought expressed by Bourke and Brown. If he added to what they taught it was a change in degree only. Steccone can not dispute the proposition that his patent describes a structure which does the same thing (perhaps with better results) in the same way by substantially the same means, as the devices described in the prior art patents named herein.
The judgment is affirmed.
Question: This question concerns the second 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:
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songer_adminrev
|
J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AUTOTRONICS, INC., Respondent.
No. 78-1656.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 14, 1979.
Decided April 16, 1979.
Rehearing Denied May 10, 1979.
John D. Burgoyne, Asst. Gen. Counsel, N. L. R. B., Washington, D. C. (argued), Jerrold J. Wohlgemuth, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., on brief, for petitioner.
Donald W. Jones of Prewitt, Jones & Karchmer, Springfield, Mo., argued, for respondent.
Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and HANSON, Senior District Judge.
The Honorable William C. Hanson, Senior United States District Judge, Southern District of Iowa, sitting by designation.
GIBSON, Chief Judge.
The National Labor Relations Board petitions for enforcement of its order against respondent Autotronics, Inc., entered June 28, 1978, pursuant to a “Stipulation for Board Order and Court Decree.” Autotron-ics, the International Union, Allied Industrial Workers of America, AFL-CIO (union), and the General Counsel of the Board entered into the stipulation on April 25, 1978, subject to approval by the Board. The stipulation provides for entry of a consent order by the Board and a consent judgment by an appropriate United States Court of Appeals whereby Autotronics would be required to cease and desist from certain unfair labor practices, to post a notice and to make whole certain employees for losses suffered by reason of respondent’s conduct. The parties waived all other procedure before the Board, and respondent waived its right to contest entry of the consent judgment and to receive notice of the application.
Autotronics asserts that the stipulation cannot be the basis for an enforcement order, because of certain irregularities in the manner in which the stipulation was prepared and executed. On this basis it filed a motion for reconsideration by the Board which the Board denied on August 17, 1978. We deny enforcement of the Board’s order.
The Board’s General Counsel issued a complaint against respondent on November 9, 1977, alleging a number of unfair labor practices. Originally, respondent’s president, Charles Womack, attempted to handle the proceedings by filing a one-sentence answer generally denying the allegations of the complaint. This prompted transfer of the proceedings to the Board for summary judgment, and the Board ordered respondent to show cause in writing by December 28, 1977, why the summary judgment motion should not be granted. On December 12, 1977, Donald W. Jones entered his appearance as counsel for respondent and became the attorney of record for respondent in these proceedings before the Board and in a companion action pending in the Western District of Missouri seeking a temporary injunction pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). Jones filed a timely response to the show cause order, and on February 7, 1978, the Board General Counsel attorneys filed a motion to withdraw their earlier motion to transfer proceedings to the Board for summary judgment. The Board denied the motion for summary judgment on February 13, 1978, and returned the case to the Division of Administrative Law Judges, whereupon the Board Regional Director scheduled a hearing for April 24, 1978, at Joplin, Missouri.
Four days prior to the scheduled hearing, counsel for the Board General Counsel, Jeffrey Lerer, the union, and Womack executed a “memorandum of agreement” that contemplated the signing of a formal settlement agreement disposing of the allegations of the complaint. This memorandum contained provisions for entry of a court decree and a provision reciting that the respondent had initiated the settlement discussions. On April 25, 1978, Womack signed a formal stipulation which was approved by the Board and explicitly made the basis for its decision and order issued June 28, 1978.
The Board sent a copy of the decision and order to Jones as respondent’s attorney, and also, on July 5, 1978, the Regional Director sent him a letter requesting notification of any action taken to comply with the order. On July 8, Jones replied in a letter to the Regional Director. Jones requested the Regional Director to file with the Board a request to withdraw its decision and order approving the stipulation in order that settlement discussions could resume with him as respondent’s attorney of record. Jones asserted that unethical conduct on the part of the Board attorneys should preclude the Board from accepting the stipulation. In particular, he contended that his exclusion from the settlement discussions was improper because he was the respondent’s attorney of record; that Womack had not fully understood the agreement and had been subjected to coercive pressure by the Board attorneys; that in Jones’s opinion, based upon the disposition of the section 10(j) injunction action, respondent could successfully defend against the allegations of the complaint; and that the transmission of the stipulation by the Regional Office to the Board without serving a copy upon respondent’s attorney of record constituted an ex parte communication to the Board in flagrant breach of the Board’s own rules of procedure. Jones also indicated that Auto-tronics would comply with the order to protect it from contempt charges, but that by complying it did not intend to waive its right to request reconsideration.
The Regional Director responded to Jones’s letter by denying that Jones represented Autotronics at the time of the settlement or thereafter. The Director took the position that Womack had discharged Jones by waiving the right to assistance of counsel, and that Jones had been fully informed of the settlement discussions after the informal agreement had been signed, even though Jones had never been provided with a copy of the agreement or the formal stipulation.
Respondent, through Jones, moved to set aside the Board order and stipulation on July 14, 1978, and Womack responded to the letter of the Regional Director. First, Womack stated that Jones had been and continued to be respondent’s attorney of record. He then explained the circumstances of the settlement discussion. Womack claimed that on April 20 the Board attorney, Lerer, telephoned him to discuss the unfair labor practice charges. Lerer allegedly stated that the union was considering dropping charges. He asked how the company was preparing for the formal hearing and discussed how long the hearing would run. When Womack stated that he would be unable to attend the hearing or would have to close the plant because of lack of supervision, Lerer allegedly indicated that closing could result in further unfair labor practice charges, and suggested coming over to Womack’s office accompanied by the union representative to “work something out.” Womack agreed, and Lerer and the union representative arrived at the plant after lunch. After some discussion, Womack told Lerer to draft his proposal while Womack returned to the shop. Lerer returned with the proposal later that day, and Womack stated:
Upon his return I was called to the lobby where I met Mr. Lerer. I began to scan the document when I recognized a statement on the first page which stated that the Company had bypassed its attorney and contacted the Board in pursuit of the settlement agreement. I objected strenuously to inclusion of an untruth in the document but Mr. Lerer countered that the statement had to be included because of professional ethics. Anyway, he added, you don’t want Mr. Jones because he has never won a case before the Board and you would just be wasting your money which we know you don’t have.
Womack claims he then signed the agreement. He also noted that the Board was well aware that Autotronics was recovering from a bankruptcy proceeding, because the company had requested the Board to appoint counsel because of Autotronics’ impoverished condition.
The Board’s order, issued August 7, 1978, denying the motion to set aside its previous decision and order, practically ignores the serious allegations of Jones and Womack. The Board merely emphasized the existence of the written agreement and that this memorandum contained a provision for a consent decree and alleged reluctance on the part of the Board attorney to discuss settlement with Womack until he gave assurances “that it would not be necessary to go through his attorney in the commencement of this meeting.” This summary recitation of the provisions of the memorandum does not reflect meaningful consideration of the charges that the memorandum itself was procured by improper methods.
The allegations of Jones and Womack charge grave unethical conduct on the part of the Board attorney. The American Bar Association Code of Professional Responsibility Disciplinary Rule 7-104 provides:
DR 7-104 Communicating With One of Adverse Interest.
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.
The Board attorney clearly violated this rule by discussing settlement with Womack before obtaining Jones’s consent, regardless of whether the Board attorney discussed the agreement with Jones after Womack signed it. This rule was formulated to obviate the possibility of taking advantage of an uncounseled party. The coercive tactics allegedly engaged in by the Board attorney illustrate the potential abuse in this situation. These tactics included lulling Wom-ack into believing that the Board attorney could represent his interests, threatening further unfair labor practice charges, playing upon the known financial insecurity of the company, and derogating the abilities of Autotronics’ counsel of record.
The Regional Director’s position, that Au-totronics was not represented by counsel at the time of the settlement discussions, cannot be credited. The Board did not adhere to that position when it sent Jones a copy of the June 28 decision and order and the letter on July 5,1978. Even the relied-upon provision of the memorandum, stating, “it would not be necessary to go through his attorney” (emphasis supplied), reveals that Womack did have an attorney. This provision merely indicates that Womack had been convinced that he did not need to have his attorney present at the discussion; it does not suggest that he discharged his attorney. Furthermore, the Board’s brief now concedes that Jones was counsel of record throughout the proceedings.
Jones also asserts that the Board violated its own rules against ex parte communications when the Regional Director’s office transmitted the agreement and stipulation to the Board for approval without serving copies on respondent’s attorney of record. See 29 C.F.R. §§ 102.111(b), 102.126, 102.-128(e), 102.129(a). In his July 14 motion, Jones requested the Board to follow the provisions of 29 C.F.R. § 102.112 for failure to comply with the requirements of service by either rejecting the memorandum and stipulation or reconsidering the June 28 decision and order after proper service. The Board disposed of this claim in its August 17 order by noting that according to the stipulation the parties waived any further procedure to which they might be entitled under the rules and regulations of the Board. In view of the Board’s failure to address the challenge to the validity of the stipulation, the finding of a waiver is not persuasive. Indeed, the existence of regulations providing for service upon attorneys of record would seem to imply Board recognition of the need to avoid potential abuses resulting from dealing directly with the charged party and bypassing its counsel.
Upon careful consideration of the entire record below, we conclude that we cannot enforce the Board order based upon the stipulation. Womack and Jones’s letters clearly tainted the stipulation by their allegations of coercive and unethical conduct on the part of the Board attorney, and the Board failed to present adequate evidence to refute this taint. A stipulation subject to this cloud of improprieties cannot be considered substantial evidence.
Enforcement denied.
. The allegations of unfair labor practices related to illegal threats, illegally imposing terms of employment, suspending one employee, discharging an employee, temporarily closing business because of union activity, making unilateral changes in employment conditions, and failing to carry out obligations under a collective bargaining agreement. The Board charged Autotronics with violating section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3), (4), and (5) (1973).
. A provision of the memorandum stated:
The Settlement Conference held on this date, April 20, 1978 was initiated by the Respondent. General Counsel was reluctant to enter into settlement discussions until assurances was [sic] given by Respondent that it would not be necessary to go through his attorney in the commencement of this meeting. Upon receiving said assurances from the Respondent, settlement discussions commenced and culminated into this Agreement.
. 29 C.F.R. § 102.111 reads in part:
(b) Whenever these rules require or permit the service of pleadings or other papers upon a party, a copy shall also be served on any attorney or other representative of the party who has entered a written appearance in the proceeding on behalf of the party. If a party is represented by more than one attorney or representative, service upon any one of such persons in addition to the party shall satisfy this requirement.
. Autotronics now asserts that the application for enforcement is moot because it has fully complied with the Board order. We note that generally compliance is insufficient to render moot an application for enforcement of a Board order because of the independent value of a continuing injunction. NLRB v. Mexia Textile Mills, 339 U.S. 563, 567, 70 S.Ct. 833, 94 L.Ed. 1067 (1950); NLRB v. Douglas & Lomason Co., 443 F.2d 291, 294 (8th Cir. 1971). Because of our disposition of this case, it is unnecessary to determine if special equitable considerations might warrant a departure from this rule.
. The Regional Director’s letter stated in part: [I]t is the position of this office that you no longer represent the Respondent and have not represented the Respondent since Mr. Womack executed this Memorandum of Agreement on April 20, 1978. * * * Further, we would strenuously object to any attempts by either yourself or Mr. Womack to seek reconsideration and review of the Board order recently issued which was pursuant to the terms of the stipulation Mr. Womack voluntarily executed.
. The stipulation provided: “This Stipulation, together with the charges, order consolidating' cases, complaint and notice of hearing shall constitute the entire record herein.”
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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sc_issuearea
|
C
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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.
RUMSFELD, SECRETARY OF DEFENSE, et al. v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al.
No. 04-1152.
Argued December 6, 2005
Decided March 6, 2006
Solicitor General Clement argued the cause for petitioners. With him on the brief were Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Irving L. Gornstein, and Douglas N. Letter.
E. Joshua Rosenkranz argued the cause for respondents. With him on the brief were Sharon E. Frase and Warrington S. Parker III
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, and Joel L. Thollander and Adam W. Aston, Assistant Solicitors General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Steve Carter of Indiana, Phill Kline of Kansas, Michael A. Cox of Michigan, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Darrell V. McGraw, Jr., of West Virginia; for the American Civil Rights Union by Peter Ferrara; for the American Legion by Robert P. Parker and Philip B. Onderdonk, Jr.; for the Boy Scouts of America by George A. Davidson, Carla A. Kerr, Scott H. Christensen, and David K. Park; for the Center for Individual Rights et al. by Gerald Walpin; for the Christian Legal Society et al. by Gregory S. Baylor and Steven H. Aden; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Judge Advocates Association by Gregory M. Huckabee and Brett D. Barkey; for Law Professors et al. by Andrew G. McBride, William S. Consovoy, Daniel Polsby, and Joseph Zengerle; for the National Legal Foundation by Barry C. Hodge; for Charles S. Abbot et al. by Martin S. Kaufman, Joe R. Reeder, Philip R. Sellinger, and John P. Einwechter; and for Congressman Richard Pombo et al. by William Perry Pendley and Joseph F. Becker.
Briefs of amici curiae urging affirmance were filed for the American Association of University Professors by Kathleen M. Sullivan, Donna R. Euben, Ann D. Springer, and David M. Rabban; for the American Civil Liberties Union et al. by Kenneth Y Choe, Steven R. Shapiro, Matthew A. Coles, and James D. Esseks; for the Association of American Law Schools by Paul M. Smith, William M. Hohengarten, and Daniel Mach; for Bay Area Lawyers for Individual Freedom et al. by Beth S. Brinkmann, Seth M. Galanter, and Ruth N. Borenstein; for the Cato Institute by Gregory S. Coleman; for Columbia University et al. by Seth P. Waxman, Randolph D. Moss, James J. Mingle, Ada Meloy, and Wendy S. White; for NALP (the National Association for Law Placement) et al. by Sam Heldman and Hilary E. Ball; for the National Lawyers Guild by Zachary Wolfe; for the National Lesbian and Gay Law Association et al. by Jonathan L. Hafetz and Lawrence S. Lustberg; for the Servieemembers Legal Defense Network by Linda I Coberly, Tyler M. Paetkau, Sharra E. Greer, Kathi S. Westcott, and Gene C. Schaerr; for the Student/Faculty Alliance for Military Equality by Carmine D. Boccuzzi, Jr.; for William Alford et al. by Walter Dellinger and Pamela Harris; for Robert A. Burt et al. by Paul M. Dodyk and David N. Rosen; and for 56 Columbia Law School Faculty Members by Jonathan D. Schiller and David A. Barrett.
John H. Findley and Harold E. Johnson filed a brief for the Pacific Legal Foundation as amicus curiae.
Chief Justice Roberts
delivered the opinion of the Court.
When law schools began restricting the access of military recruiters to their students because of disagreement with the Government’s policy on homosexuals in the military, Congress responded by enacting the Solomon Amendment. See 10 U. S. C. § 983 (2000 ed. and Supp. IV). That provision specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The law schools responded by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech and association. The District Court disagreed but was reversed by a divided panel of the Court of Appeals for the Third Circuit, which ordered the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. We granted certiorari.
I
Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties. App. 5. Its declared mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” Id., at 6. FAIR members have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation. Id., at 18. They would like to restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military. See 10 U. S. C. §654. The Solomon Amendment, however, forces institutions to choose between enforcing their nondiscrimination policy against military recruiters in this way and continuing to receive specified federal funding.
In 2003, FAIR sought a preliminary injunction against enforcement of the Solomon Amendment, which at that time— it has since been amended — prevented the Department of Defense (DOD) from providing specified federal funds to any institution of higher education “that either prohibits, or in effect prevents” military recruiters “from gaining entry to campuses.” § 983(b). FAIR considered the DOD’s interpretation of this provision particularly objectionable. Although the statute required only “entry to campuses,” the Government — after the terrorist attacks on September 11, 2001 — adopted an informal policy of “ ‘requiring] universities to provide military recruiters access to students equal in quality and scope to that provided to other recruiters.’” 291 F. Supp. 2d 269, 283 (NJ 2003). Prior to the adoption of this policy, some law schools sought to promote their nondiscrimination policies while still complying with the Solomon Amendment by having military recruiters interview on the undergraduate campus. Id., at 282. But under the equal access policy, military recruiters had to be permitted to interview at the law schools, if other recruiters did so.
FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities.
The District Court denied the preliminary injunction on the ground that FAIR had failed to establish a likelihood of success on the merits of its First Amendment claims. The District Court held that inclusion “of an unwanted periodic visitor” did not “significantly affect the law schools’ ability to express their particular message or viewpoint.” Id., at 304. The District Court based its decision in large part on the determination that recruiting is conduct and not speech, concluding that any expressive aspect of recruiting “is entirely ancillary to its dominant economic purpose.” Id., at 308. The District Court held that Congress could regulate this expressive aspect of the conduct under the test set forth in United States v. O’Brien, 391 U. S. 367 (1968). 291 F. Supp. 2d, at 311-314.
In rejecting FAIR’S constitutional claims, the District Court disagreed with “the DOD’s proposed interpretation that the statute requires law schools to ‘provide military recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.’ ” Id., at 321. In response to the District Court’s concerns, Congress codified the DOD’s informal policy. See H. R. Rep. No. 108-443, pt. 1, p. 6 (2004) (discussing the District Court’s decision in this case and stating that the amended statute “would address the court’s opinion and codify the equal access standard”). The Solomon Amendment now prevents an institution from receiving certain federal funding if it prohibits military recruiters “from gaining access to campuses, or access to students ... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. § 983(b) (2000 ed., Supp. IV).
FAIR appealed the District Court’s judgment, arguing that the recently amended Solomon Amendment was unconstitutional for the same reasons as the earlier version. A divided panel of the Court of Appeals for the Third Circuit agreed. 390 F. 3d 219 (2004). According to the Third Circuit, the Solomon Amendment violated the unconstitutional conditions doctrine because it forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university. Id., at 229-243. Unlike the District Court, the Court of Appeals did not think that the O’Brien analysis applied because the Solomon Amendment, in its view, regulated speech and not simply expressive conduct. 390 F. 3d, at 243-244. The Third Circuit nonetheless determined that if the regulated activities were properly treated as expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under O’Brien. 390 F. 3d, at 244-246. As a result, the Court of Appeals reversed and remanded for the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment. Id., at 246. A dissenting judge would have applied O’Brien and affirmed. 390 F. 3d, at 260-262 (opinion of Aldisert, J.).
We granted certiorari. 544 U. S. 1017 (2005).
II
The Solomon Amendment denies federal funding to an institution of higher education that “has a policy or practice ... that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U. S. C. § 983(b) (2000 ed., Supp. IV). The statute provides an exception for an institution with “a longstanding policy of pacifism based on historical religious affiliation.” § 983(c)(2) (2000 ed.). The Government and FAIR agree on what this statute requires: In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.
Certain law professors participating as amici, however, argue that the Government and FAIR misinterpret the statute. See Brief for William Alford et al. as Amici Curiae 10-18; Brief for 56 Columbia Law School Faculty Members as Amici Curiae 6-15. According to these amici, the Solomon Amendment’s equal access requirement is satisfied when an institution applies to military recruiters the same policy it applies to all other recruiters. On this reading, a school excluding military recruiters would comply with the Solomon Amendment so long as it also excluded any other employer that violates its nondiscrimination policy.
In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. Reply Brief for Petitioners 20, n. 4. But our review may, in our discretion, encompass questions “‘fairly included’” within the question presented, Yee v. Escondido, 503 U. S. 519, 535 (1992), and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says. Nor must we accept an interpretation of a statute simply because it is agreed to by the parties. After all, “[o]ur task is to construe what Congress has enacted.” Duncan v. Walker, 533 U. S. 167, 172 (2001). We think it appropriate in the present ease to consider whether institutions can comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters.
We conclude that they cannot and that the Government and FAIR correctly interpret the Solomon Amendment. The statute requires the Secretary of Defense to compare the military’s “access to campuses” and “access to students” to “the access to campuses and to students that is provided to any other employer(Emphasis added.) The statute does not call for an inquiry into why or how the “other employer” secured its access. Under amici’s reading, a military recruiter has the same “access” to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal “access” in this situation — regardless of whether the disparate treatment is attributable to the military’s failure to comply with the school’s nondiscrimination policy.
The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy and compares the “access . . . provided” military recruiters to that provided other recruiters. Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that “provided to any other employer.” (Emphasis added.)
Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment’s recent revision. Under the prior version, the statute required “entry” without specifying how military recruiters should be treated once on campus. 10 U. S. C. § 983(b) (2000 ed.). The District Court thought that the DOD policy, which required equal access to students once recruiters were on campus, was unwarranted based on the text of the statute. 291 F. Supp. 2d, at 321. Congress responded directly to this decision by codifying the DOD policy. Under amici’s interpretation, this legislative change had no effect — law schools could still restrict military access, so long as they do so under a generally applicable nondiscrimination policy. Worse yet, the legislative change made it easier for schools to keep military recruiters out altogether: Under the prior version, simple access could not be denied, but under the amended version, access could be denied altogether, so long as a nonmilitary recruiter would also be denied access. That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise.
We therefore read the Solomon Amendment the way both the Government and FAIR interpret it. It is insufficient for a law school to treat the military as it treats all other employers who violate its nondiscrimination policy. Under the statute, military recruiters must be given the same access as recruiters who comply with the policy.
Ill
The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, els. 1, 12-13. Congress’ power in this area “is broad and sweeping,” O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, “judicial deference ... is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70.
Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’ choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities.
Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater because universities are free to decline the federal funds. In Grove City College v. Bell, 465 U. S. 555, 575-576 (1984), we rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument “warranted] only brief consideration” because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Id., at 575. We concluded that no First Amendment violation had occurred— without reviewing the substance of the First Amendment claims — because Grove City could decline the Government’s funds. Id., at 575-576.
Other decisions, however, recognize a limit on Congress’ ability to place conditions on the receipt of funds. We recently held that “The government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.’ ” United States v. American Library Assn., Inc., 539 U. S. 194, 210 (2003) (quoting Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996) (some internal quotation marks omitted)). Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress could not directly require universities to provide military recruiters equal access to their students.
This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958). Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds,
A
The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.
Nevertheless, the Third Circuit concluded that the Solomon Amendment violates law schools’ freedom of speech in a number of ways. First, in assisting military recruiters, law schools provide some services, such as sending e-mails and distributing flyers, that clearly involve speech. The Court of Appeals held that in supplying these services law schools are unconstitutionally compelled to speak the Government’s message. Second, military recruiters are, to some extent, speaking while they are on campus. The Court of Appeals held that, by forcing law schools to permit the military on campus to express its message, the Solomon Amendment unconstitutionally requires law schools to host or accommodate the military’s speech. Third, although the Court of Appeals thought that the Solomon Amendment regulated speech, it held in the alternative that, if the statute regulates conduct, this conduct is expressive and regulating it unconstitutionally infringes law schools’ right to engage in expressive conduct. We consider each issue in turn.
1
Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard, 430 U. S. 705, 717 (1977), we held unconstitutional another that required New Hampshire motorists to display the state motto — “Live Free or Die” — on their license plates.
The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf. See, e. g., App. 169-170; Brief for NALP (National Association for Law Placement) et al. as Amici Curiae 11. Law schools offering such services to other recruiters must also send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny. See Brief for Respondents 25 (citing Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 797-798 (1988)).
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.
The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. See R. A. V. v. St. Paul, 505 U. S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed not against speech but against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
2
Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 566 (1995) (state law cannot require a parade to include a group whose message the parade’s organizer does not wish to send); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 20-21 (1986) (plurality opinion); accord, id., at 25 (Marshall, J., concurring in judgment) (state agency cannot require a utility company to include a third-party newsletter in its billing envelope); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers). Relying on these precedents, the Third Circuit concluded that the Solomon Amendment unconstitutionally compels law schools to accommodate the military’s message “[b]y requiring schools to include military recruiters in the interviews and recruiting receptions the schools arrange.” 390 F. 3d, at 240.
The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate. The expressive nature of a parade was central to our holding in Hurley. 515 U. S., at 568 (“Parades are ... a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches’’). We concluded that because “every participating unit affects the message conveyed by the [parade’s] private organizers,” a law dictating that a particular group must be included in the parade “alter[s] the expressive content of th[e] parade.” Id., at 572-573. As a result, we held that the State’s public accommodation law, as applied to a private parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id., at 573.
The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker’s desired message. In Tornillo, we recognized that “the compelled printing of a reply ... tak[es] up space that could be devoted to other material the newspaper may have preferred to print,” 418 U. S., at 256, and therefore concluded that this right-of-reply statute infringed the newspaper editors’ freedom of speech by altering the message the paper wished to express, id., at 258. The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8-9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility’s ability to communicate its own message in its newsletter. A plurality of the Court likened this to the situation in Tornillo and held that the forced inclusion of the other newsletter interfered with the utility’s own message. 475 U. S., at 16-18.
In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military’s policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was “not . . . being compelled to affirm [a] belief in any govern-mentally prescribed position or view.” Id., at 88.
The same is true here. Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion); accord, id., at 268 (Marshall, J., concurring in judgment); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 841 (1995) (attribution concern “not a plausible fear”). Surely students have not lost that ability by the time they get to law school.
3
Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment’s protection. In O’Brien, we recognized that some forms of “‘symbolic speech’” were deserving of First Amendment protection. 391 U. S., at 376. But we rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Ibid. Instead, we have extended First Amendment protection only to conduct that is inherently expressive. In Texas v. Johnson, 491 U. S. 397, 406 (1989), for example, we applied O’Brien and held that burning the American flag was sufficiently expressive to warrant First Amendment protection.
Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment’s equal access requirement, law schools “expressed” their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not “overwhelmingly apparent.” Johnson, supra, at 406. An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.
The expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result.
Although the Third Circuit also concluded that O’Brien does not apply, it held in the alternative that the Solomon Amendment does not pass muster under O’Brien because the Government failed to produce evidence establishing that the Solomon Amendment was necessary and effective. 390 F. 3d, at 245. The Court of Appeals surmised that “the military has ample resources to recruit through alternative means,” suggesting “loan repayment programs” and “television and radio advertisements.” Id., at 234-235. As a result, the Government — according to the Third Circuit— failed to establish that the ‘statute’s burden on speech is no greater than essential to furthering its interest in military recruiting. Id., at 245.
We disagree with the Court of Appeals’ reasoning and result. We have held that “an incidental burden on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, 472 U. S. 675, 689 (1985). The Solomon Amendment clearly satisfies this requirement. Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces — an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers. The Court of Appeals’ proposed alternative methods of recruiting are beside the point. The issue is not whether other means of raising an army and providing for a navy might be adequate. See id., at 689 (regulations are not “invalid simply because there is some imaginable alternative that might be less burdensome on speech”). That is a judgment for Congress, not the courts. See U. S. Const., Art. I, §8, els. 12-13; Rostker, 453 U. S., at 64-65. It suffices that the means chosen by Congress add to the effectiveness of military recruitment. Accordingly, even if the Solomon Amendment were regarded as regulating expressive conduct, it would not violate the First Amendment under O’Brien.
B
The Solomon Amendment does not violate law schools’ freedom of speech, but the First Amendment’s
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Willa Dean WHETSTONE, Appellant, v. The ORION INSURANCE COMPANY, Limited, and Lloyd’s, London, Appellees.
No. 6827.
United States Court of Appeals Tenth Circuit.
March 20, 1962.
Gus Rinehart, Oklahoma City, Okl. (Richard E. Romang, Enid, Okl., on brief), for appellant.
Clayton B. Pierce, Oklahoma City, Okl., for appellees.
Before Murrah, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges.
MURRAH, Chief Judge.
This appeal is from the dismissal of a garnishment proceeding brought to recover the unpaid balance of a judgment. Appellant had obtained the judgment against one John Bennett for damages resulting from an automobile accident. Bennett was employed as a land man by the McAlester Fuel Company and appellees are the insurers of McAlester under a general liability policy bearing an endorsement indemnifying such Company and its employees “when * * * liability is incurred by reason of, or in connection with, the assured’s operations.”
McAlester furnished Bennett an automobile to use in the performance of his company duties, and allowed its use on personal trips under an arrangement whereby Bennett reimbursed the Company at the rate of per mile. The record shows that Bennett left his place of employment in Midland, Texas and drove, with his family, to Roswell, New Mexico, where he transacted company business. He then drove, with his family, to Enid, Oklahoma to visit his wife’s relatives. On the return trip to Midland, the accident giving rise to the judgment occurred.
Appellant contends that Bennett was traveling “in connection with” the operations of McAlester at the time of the accident. Appellees contend that the terms “by reason of” and “in connection with,” as used in the contract, are synonomous and that a causal connection between the work or business of McAlester and the act of the employee which created his liability is necessary to bring that act within the coverage of the policy.
The first portion of the endorsement in question insured McAlester and its employees and agents “ * * * for any and all sums which (they) shall be legally liable to pay * * * by reason of the assured’s operations.” Clearly, this language required that the insurer respond only to liability incurred by its employees or agents in the course of their employment—i. e., while performing some function within the scope of their agency relationship. The remaining portion of the endorsement, however, restates the coverage when liability is incurred “by reason of * * * the assured’s operations” and alternatively provides that the same coverage shall obtain when liability results “in connection with” the assured’s operations.
The law will not presume that the parties used tautological words to express their contract. Rather, it will presume that every word has a distinct meaning and purpose within the context in which it is found. See Utex Exploration Co. v. Garwood (10 C.A.) 246 F.2d 547, 550; First National Insurance Co. of America v. Norton (10 C.A.) 238 F.2d 949; Basler v. Warren (10 C.A.) 159 F.2d 41, 43. The words “by reason of or in connection with” were obviously used as words of art to delineate coverage under the insurance contract. Clearly, these terms were not intended to be used synonomously. Rather, we think the term “in connection with” was intended to provide coverage in addition to that already stated in the contract. This additional coverage would seem to apply not only to acts within the doctrine of respondeat superior, but to acts which are in any way connected with the operations of the employer. It is not conditioned on the exercise of an agency relationship, nor does it require that the employee be acting within the scope of his employment. Had such been the intent, it would have been a simple matter to so state.
Here, the business purposes of Bennett’s trip undoubtedly ceased at Roswell. Even so, the record shows that it was within Bennett’s personal discretion to perform additional work for McAlester during the entire trip if he thought it advisable, and he was subject to call at any time. Indeed, he had left word where he might be reached during the trip. In addition, he carried a briefcase containing notes about company business and he was required to return the automobile to Midland, Texas. Each of these factors are tangibly associated and related to the “operations” of Mc-Alester and although merely incidental to Bennett’s return trip from Enid, they were sufficiently “connected” to McAlester’s operations to satisfy the plain terms of the endorsed coverage and to render Bennett an “assured” within the meaning of the policy.
Reversed and remanded for further proceedings not inconsistent with this opinion.
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_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 the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Earnestine DOVE et al., Appellants, v. Lee PARHAM et al., Appellees (two cases). Lee PARHAM et al., Appellants, v. Earnestine DOVE et al., Appellees.
Nos. 16437, 16448, 16487.
United States Court of Appeals Eighth Circuit.
Aug. 30, 1960.
Robert V. Light and Herschel H. Friday, Jr., Little Rock, Ark., for Parham, et al.
George Howard, Jr., Pine Bluff, Ark., and Robert L. Carter, New York City, for Dove and others.
Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and DELEHANT, District Judge.
JOHNSEN, Chief Judge.
These appeals are from orders made by the District Court, 181 F.Supp. 504 and 183 F.Supp. 389 in a transition by Dollar-way School District No. 2, Jefferson County, Arkansas, from a segregated to a desegregated school system. Involved are the things which have occurred in the situation since our remand in Parham v. Dove, 8 Cir., 271 F.2d 132.
One of the directions in our mandate, 271 F.2d at page 135, was that an injunction should be entered against the District and its officers to prevent them from continuing to maintain, as against the student plaintiffs and the class represented by them, the system of unconstitutional segregation to which the District had been subjecting them in their educational process.
This direction was made because the school board had up to that time taken no steps, even of a transitional nature, to bring about the disestablishment of the existing unlawful status- — -which a recognition of the responsibility made clear by the Brown cases, Brown v. Board of Education etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, ought by then to have prompted.
We held, however, that, in view of the enactment of a state pupil placement or assignment statute, Act No. 461 of 1959, Ark.Stats. § 80-1525 et seq., the District would not be summarily required to make admission of the three individual plaintiffs involved to the school they sought to attend, but should be afforded the opportunity to make use of the provisions of the statute as a means or an aid in effecting an orderly location of pupils generally, in relation to the various factors which could be involved as to distribution in its school system, except those of purely racial consideration. 271 F.2d at page 137.
The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a “legislative non-racial scheme”, intended to serve in effecting student location through “overall pattern”, instead of by promiscuous result. Id., at page 138. But we cautioned that “the statute cannot * * * be made to serve through artificial application, as an instrument for maintaining * * * a system of racial segregation”. Id., at page 136.
Judicial persuasion would not normally tend to be produced that a placement or assignment statute was being used as an auxiliary in effecting an orderly solution of a school district’s integration problems, where the district had refrained from adopting any program to disestablish its previous racial discrimination, where the only application of the statute engaged in by it was to Negro students seeking to escape their segregated status, and where the only result brought about thereby was to leave the racial situation in the school system remaining exactly as before.
Standards of placement cannot be devised or given application to preserve an existing system of imposed segregation. Nor can educational principles and theories serve to justify such a result. These elements, like everything else, are subordinate to and may not prevent the vindication of constitutional rights. An individual cannot be deprived of the enjoyment of a constitutional right, because some governmental organ may believe that it is better for him and for others that he not have this particular enjoyment. The judgment as to that and the effects upon himself therefrom are matters for his own responsibility.
In summary, it is our view that the obligation of a school district to disestablish a system of imposed segregation, as the correcting of a constitutional violation, cannot be said to have been met by a process of applying placement standards, educational theories, or other criteria, which produce the result of leaving the previous racial situation existing, just as before. Such an absolute result affords no basis to contend that the imposed segregation has been or is being eliminated. If placement standards, educational theories, or other criteria used have the effect in application of preserving a created status of constitutional violation, then they fail to constitute a sufficient remedy for dealing with the constitutional wrong.
Whatever may be the right of these things to dominate student location in a school system where the general status of constitutional violation does not exist, they do not have a supremacy to leave standing a situation of such violation, no matter what educational justification they may provide, or with what subjective good faith they may have been employed. As suggested above, in the remedying of the constitutional' wrong, all this has a right to serve only in subordinancy or adjunctiveness to the task of getting rid of the imposed segregation situation.
That was the basis on which we held in our previous opinion, 271 F.2d at page 137, that the District was entitled to a use of the placement or assignment statute in relation to its desegregation task, when we stated that the statute was being accorded recognition “only as an implement or adjunctive element * * * for effecting an orderly solution to its (the District’s) desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result”.
What has been said up to this point is foundational to our dealing with the questions presented by these appeals. Three appeals are before us. The first one, No. 16,437, involves a determination of whether the trial court was entitled to dismiss the complaint of the plaintiffs and deny them relief from the school board’s refusal to admit them to the school they sought to attend. The second case, No. 16,448, is a cross-appeal by the District and the school board from the holding of the court that it had jurisdiction to deal with the complaint of the plaintiffs on its merits and was not required to make dismissal thereof on the basis that the plaintiffs had not exhausted their administrative remedies under the placement or assignment statute in respect to the board’s action of denial against them. The third appeal, No. 16,487, is by the plaintiffs from the approval granted by the court to the transitional plan and program filed by the District after the other decisions here involved, in response to a requirement of the court that it submit “an affirmative statement of its plans and policies designed to bring about an end to compulsory racial segregation in (its) public schools”.
I.
It is, we think, quite generally recognized that a solution to the problem of effecting desegregation will in most instances have to come through a series of progressive, transitional steps. And the Brown decisions appear to permit of the handling of a situation in this manner, provided the school' district engages in making a “reasonable start toward full compliance” and continues to move forward with “all deliberate speed”.
The question here as to the propriety of the court’s approval of the school board’s plan and program for bringing about an end to the compulsory segregation existing in the District’s school system thus is in its overall significance the most important one before us, and it will accordingly be first considered.
The approval order was made on the basis of the court’s expressed view “that the plan provides a start toward the elimination of racial discrimination, and that it is sufficient to initiate a transition period”. 183 F.Supp. at page 393. Our difficulty with this is that what the school board has said it intends to do does not seem to us to contain any demonstrable objectivity, of either effort or aim, so as realistically to be appraisable as a “reasonable start” — not in subjectivity, but in affirmative effort.
In substance, the plan states generally that the school board intends to use the provisions of the Arkansas pupil placement or assignment statute in respect to any application made for admission to a school, other than the one which the student is now attending. Application of the provisions of the statute will be made, the plan states, in relation to such policies as that “it is undesirable and unsound educationally to transfer a child from the school which he is presently in attendance (at) to a different school”; that “the Board should give favorable consideration to applications for the lateral transfer of students (that is, the transfer of a student from one school in the District to another school in the District) only in exceptional cases”; and that “When an exceptional case is found by the Board to exist, a lateral transfer may be granted if, in the opinion of the Board, the pupil can make the necessary adjustment and perform and achieve satisfactorily in the school to which transfer is requested.”
The steeping of the provisions of the placement statute in such dissuading abstractions, where the board has never given any indication of an existing desegregation opening (such as an announced intention or undertaken action to admit some contemplated number of Negro students, by a designated time, at a particular level), does not afford much basis for it to say, or for a Negro realistically to believe, that the opportunity exists for such students, either in whole or part, to escape from their imposed segregation status. And the more is this .persuasion impelled as to the present situation, in that the only result which the District has demonstrated is subject to being produced by a use of the statute on the foregoing basis is to leave the segregation situation remaining, just as it is.
Relatedly, it may be noted that in its announced climate of principles for using the placement statute, the District has further made its processes of application of the statute consist in having applicants for transfer subjected to such devices as the California Mental Maturity Test, the Iowa Silent Reading Test, the Otis Quick Scoring Test of Mental Ability, the California Language Tests, the Bell Adjustment Inventory, and other such things— which, at least in the elementary area of public education, are new adornments upon the entrance doors to school houses and class rooms.
Again, in what the District has done and proposes to continue doing, application of these devices is not going to be made to the students generally of the system but only to such individuals as undertake to engage in application for a transfer — which in the realities of the District here simply means, to Negro students seeking to enter a white school.
The District admittedly has no intention to engage in any such general application of these devices as to enable it to effect a reconstruction or reorganization of its school system or its class rooms on the basis of the levels that might be arrived at from such individual scorings. Nor can it be said to intend to make the statute serve as a means for making a choice or selection among Negro students in relation to each other, for purposes of some initial, limited, transitional step in effecting the disestablishment of its segregation system — because the plan does not contain any definitive expression of indicated opening at any point for the admission, as suggested above, of some contemplated number of Negro students, by a particular time, at a designated grade-level.
The plan does engage in a use of some general softening language in respect to first-grade students, but it does not set forth any definitive program or step on the board’s part for so effecting desegregation, or hold forth any promise of such a result, as a “reasonable start” at this level.
The board’s statement says generally that “the educational considerations which make lateral transfers undesirable and unsound do not exist, for the most part, in the case of first graders”; that “they have not established relationships with teachers, formed extensive friendships, become adjusted to a particular environment, established a curriculum pace, adopted a particular course of study, etc.”; that “first graders do not have prejudices and fixed ideas concerning traditions to the extent that older students have”; and that “Therefore, the Board is not concerned ‘with exceptional cases’ in the sense involved in lateral transfers”.
But to this there is added that “there must necessarily be a more extensive review of all facts relevant to the assignment criteria in making the initial assignment of first graders”, and that the board “will make this more extensive review”. And while it further is said in general terms that the opportunity will be given for pupils and their parents to make indication of school preference as to initial first-grade assignment, this is followed by the declaration that such assignments will be made “consistent with available school facilities, current teacher load, curriculum, emotional stability, readiness ability, adjustment potential and related matters.”
Thus, the board has presented no objective plan for the admission of any Negro students to the first grade of its two white schools, as a step in the process of effecting desegregation in its educational system. It has not held out any indication of reasonable opportunity as a basis for such requests of initial assignment to be chosenly made. Nor has it stated that it is ready to make any such desegregating assignments. Instead, it in effect says that, before it can answer that question, it must, even as to first graders, delve into such things as “emotional stability, readiness ability, adjustment potential, and related matters”.
The trial court, on careful consideration, was of the opinion that “The provisions for the initial assignment of first graders are fair on their face and are sufficient, if applied in good faith, to give at least some Negro children entering school for the first time in September of the current year (1960-1961) a reasonable chance of being assigned to the heretofore all-white Dollarway School.” 183 F.Supp. at page 392. But, after a lapse of six years, we think a board should be required to come forth with something more objectively indicative as a program of aim and action than a speculative possibility wx-apped in dissuasive qualifications.
What has been said above should be sufficient to indicate to the board its obligations to do more than to engage in generalities. Placement standards and educational doctrines are entitled to their proper play, but that play, as we have emphasized, is subordinate to the duty to move forward, by whatever means necessary, to correct the existing constitutional violation with “all deliberate speed”.
We had intended to hold up the filing of this opinion until after the board had takeix such action and produced such result as it intended to operate its school system under during the immediately pending school year. The press now contains a dispatch, indicating that the board has announced that it has assigned one 6-yeax--old Negro girl to the first grade in one of its two white schools for the pending year, and quoting the board as stating that it hoped that its action would help preserve the Ax-kansas pupil assignment law. We do no more than to note the item. The trial court may possibly desire to have indication made, in the more definitive expression of program which the board is being required to make, of what scope of opportunity generally was afforded for admission, in relation to such action.
Two further comments should pex’haps here be made. Both we and the trial court have regarded the board as having been acting with subjective good faith. The question here, howevex*, is not state of mind but required action. Required action is measurable only by objectivity.
The second relates to the statement of the trial court, 183 F.Supp. at page 393, as follows: “The Board has stated with candor that in making assignments consideration will be given to race. As indicated, where a transition period has been initiated, limited consideration in assigning students may be given to race”.
Where a board has adopted a definitive plan of effecting desegregation by reasonable transitional steps, the racial question necessarily is geared to the scope of those steps. But only in that sense and within that need, we think, is there basis to say that consideration in assigning students may be given to race. The board may in such a situation find it necessary to make selection between Negro students, and it will be entitled to do so on proper judgment as to what will best serve to accomplish its program. However, as we have said above, it has ■no right to resolve or take action at any time on the basis that it is better for some individual not to have the enjoyment of his constitutional right.
II.
As to appeal No. 16,437, relating to the court’s refusal to order the three Negro plaintiffs admitted to the 12th and 9th grades respectively of the school they sought to attend, we think that the court was entitled to require in relation to the problem of general achievement, that the enjoyment of their right to desegregation be geared to a reasonable, definitive, transitional program of “all deliberate speed”.
That problem, in its sound solution, is in most instances one for general, orderly, reasonable progression. Where the court concludes that a board is warranted in so proceeding, it does not have to leave the door subject to general crash efforts, on a “first come, first served” basis and consequence. This is not to say, of course, that such action may not be resorted to, where it appears to be necessary in order to break down the segregation barrier.
III.
There remains for consideration No. 16,448, the appeal of the District and the school board from the court’s refusal to dismiss the complaint for lack of jurisdiction to consider its merits.
, The contention made is that the plaintiffs could not resort to the federal court ágainst the action of the board in denying their applications for transfer, at leaát until after they had exhausted the remedies of appeal provided from such action to the State Circuit Court and State Supreme Court. The District and the board regard the appeals which are so provided for in the statute as part of the administrative process existing under the placement or assignment statute in respect to an application for transfer. Section 80-1531 of the Arkansas Statutes, as here pertinent, provides for a right of exception to the action of a school board in its assignment of a student, “as constituting a denial of any right of such minor guaranteed under the Constitution of the United States”. If the board does not reconsider its action, “an appeal may be taken from the final action * * *, on such [constitutional] ground alone, to the Circuit Court * * * by filing * * * a petition stating the facts * * * bearing on the alleged denial of his rights under the United States Constitution * * * »
While the section further provides that “the Circuit Court will try the said cause de novo”, it seems apparent, from the provision as to the scope of the exception to be made before the board and the requirement as to the contents of the petition (“the facts bearing on the alleged denial of his [constitutional] rights”), that the question which the court is intended to try is that of constitutional violation. Thus, the state remedy afforded is judicial and not administrative in its character and function. Judicial remedies of state courts for vindication of federal constitutional rights do not have to be exhausted, before there can be resort to a federal court, unless some federal statute so requires as to a particular legal situation. Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 875, 83 L.Ed. 1281. See also City Bank Farmers’ Trust Co. v. Schnader, 291 U.S. 24, 30, 54 S.Ct. 259, 78 L.Ed. 628; Carson v. Warlick, 4 Cir., 238 F.2d 724, 729.
IV.
Cases Nos. 16,437 and 16,448 are affirmed. The order appealed from in case No. 16,487 is vacated, and the cause remanded for further proceedings.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_casetyp2_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.
There are two main issues in this case. The first issue is economic activity and regulation - torts - product liability. 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".
SCANDINAVIAN AIRLINES SYSTEM, Plaintiff-Appellant, v. UNITED AIRCRAFT CORPORATION, Defendant-Appellee.
No. 76-1765.
United States Court of Appeals, Ninth Circuit.
July 24, 1979.
George N. Tompkins, Jr., Condon & For-syth, New York City (argued), Adams Du-que & Hazeltine, Los Angeles, Cal., for plaintiff-appellant.
Jacques Soiret, Los Angeles, Cal. (argued), Kirtland & Packard, Los Angeles, Cal., for defendant-appellee.
Keith Gerrard, John D. Dillow, Richard C. Coyle of Perkins, Coie, Stone, Olsen & Williams, amici curiae, for The Boeing Co., Lockheed Aircraft Corp., McDonnell Douglas Corp.
Before ANDERSON and HUG, Circuit Judges, and SOLOMON , Senior District Judge.
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.
HUG, Circuit Judge:
The central issue of this action is whether strict liability under California law is applicable when a large airline sues a manufacturer of an aircraft engine for a defect in the product that caused property damage to the engine itself and to the aircraft on which it was installed.
Scandinavian Airlines System brought this diversity action to recover for property damage resulting from the failure of two separate jet aircraft engines on two different occasions. The failure of these jet engines on each occasion caused damage to the engines' themselves and to the two DC-9 aircraft on which they were installed. Both engines were manufactured by United Aircraft Corporation. One engine, No. 181, was purchased by SAS directly from United. The other engine, No. 168, was installed on a DC-9 which was purchased from McDonnell Douglas Corporation by SAS. This action was brought against both McDonnell Douglas and United. A summary judgment was entered for McDonnell Douglas on the claims against it which was initially appealed by SAS, but subsequently dismissed on motion of SAS.
The complaint stated claims against United on theories of negligence, breach of express and implied warranties and on strict liability. On United’s motion for summary judgment on all claims, the trial court granted a partial summary judgment on the claims for relief based upon warranty and strict liability, but denied the motion as to the claim for relief based upon negligence. SAS has appealed this partial summary judgment pursuant to 28 U.S.C. § 1292(b), permission having been granted by this court. SAS does not contest the judgment on the warranty theory, but confines the argument on appeal to the judgment on the strict liability theory.
FACTS
SAS is a large, international air carrier which owns and operates a fleet of sophisticated jet aircraft. A part of that fleet consists of McDonnell Douglas DC-9 jets. The jet engines used to power SAS’s DC-9’s are manufactured by United. Extensive negotiations were conducted between SAS and McDonnell Douglas with respect to the purchase of the DC-9’s. The specifications that were negotiated included those relating to the thrust output of the United engines.
One engine, the thrust output of which was increased as a result of the negotiations between SAS and McDonnell Douglas, was a United JT8D-11, serial number 676168 (No. 168), that was sold to McDonnell Douglas for installation on a DC-9 which was subsequently sold to SAS. The engine was later removed by SAS from the aircraft on which it was originally installed, ultimately being reinstalled on another SAS DC-9. On September 8, 1971, that DC-9 was in the process of takeoff at Rheim/Main Airport near Frankfurt, Germany, when, during its initial takeoff roll, engine No. 168 experienced a failure of a first-stage fan blade, resulting in damage to the engine itself and to the aircraft fuselage. There were no injuries to any persons.
SAS purchased another JT8D-11 engine, serial number 676181 (No. 181), with the same specifications, directly from United, and routinely installed it on another DC-9. On June 30, 1972, at Arlanda Airport near Arlanda, Sweden, that engine also suffered a first-stage fan blade failure during a takeoff run, resulting in damage to the engine itself and to the aircraft fuselage. Again, there were no personal injuries.
The contracts between United and SAS and United and McDonnell Douglas each provided for certain limited warranties and each contained an exculpatory clause as follows:
The foregoing warranties are exclusive and are given and accepted in lieu of any and all other warranties, express or implied, including without limitation the implied warranty of merchantibility. The remedies of buyer for any breach of warranty shall be limited to those provided herein to the exclusion of any and all other remedies including, without limitation, incidental or consequential damages. No agreement varying or extending the foregoing warranties, remedies or this limitation will be binding upon UAI [Seller] unless in writing, signed by a duly authorized officer of UAI [Seller].
The trial judge found that the exculpatory clause precluded United’s liability based on the breach of an express or implied warranty, but did not preclude the claim based upon negligence. The summary judgment in favor of United, which precluded the strict liability claim for relief, was not based, however, upon any of the exculpatory provisions of the contracts. Rather, the trial judge found that the policy reasons for invoking the strict liability doctrine did not apply in this case.
DISCUSSION
Initially, we note that this case was brought as a diversity action; and, as such, the trial judge was required to look to state law for the appropriate rule of decision. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The applicable substantive law is that of California. Since there is no definitive adjudication by the California Supreme Court on a factually similar case, we seek to reach the resolution of the issue which that court would probably reach under the same facts. C. R. Fedrick, Inc. v. Borg-Warner Corp., 552 F.2d 852, 856 (9th Cir. 1977). When the California Supreme Court has not spoken, California Courts of Appeal decisions are data for determining how the highest California court would rule. West v. A. T. & T. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). The analysis by the district judge of the law of the state in which he sits is entitled to great weight and his determination will be accepted on review, unless shown to be clearly wrong. C. R. Fedrick, Inc., 552 F.2d at 856.
Since we are reviewing a Rule 56 summary judgment, we are mindful that the granting of “[s]ummary judgment . is proper only where there is no genuine issue of any material fact or where reviewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law”. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543 (9th Cir. 1975). There is no question of fact involved in this summary judgment. We are concerned strictly with a question of law.
In holding that SAS could not proceed against United on the theory of strict liability, the trial judge stated:
We also hold that United Aircraft is not liable to SAS on a theory of strict liability in tort, not because of the exculpatory clause, but because of the lack of public policy for such a position. As mentioned above, public policy is designed to protect the small consumer and to allocate the risk of loss to the person most able to bear it, in that case, the manufacturer. Here, where there are two large companies contracting, it is only a question of who between two equals should be made to bear the risk of loss. We see no reason why the manufacturer should be made to bear the risk of loss without fault as between it and a large corporate buyer. It should be noted, again, that there has been no injury here.
In determining whether the California Supreme Court would reach the same result, it is necessary “to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted . .” by affirming the trial judge’s decision. Daly v. General Motors Corp., 20 Cal.3d 725, 736, 144 Cal.Rptr. 380, 386, 575 P.2d 1162, 1168 (1978). A reading of California Supreme Court decisions indicates that a number of policies, of varying importance, underlie the doctrine. The first California case to adopt strict tort liability was Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). There the court stated:
The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.
Id. 59 Cal.2d 63-64, 27 Cal.Rptr. at 701, 377 P.2d at 901.
The risk distribution principle was again relied upon in Seely v. White Motors Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), where the court stated that the rationale behind the doctrine
rests ... on the proposition that “[the] cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business”. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462, 150 P.2d 436 (concurring opinion).
Id. 63 Cal.2d at 18-19, 45 Cal.Rptr. at 23, 403 P.2d at 151.
In Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722 (1970), the court concluded that the risk distribution principle was the fundamental policy behind the doctrine, stating:
Essentially, the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.
Id. 2 Cal.3d at 251, 85 Cal.Rptr. at 181-182, 466 P.2d at 725-726.
The trial judge’s decision does not conflict with the risk distribution rationale in California products liability law. SAS and United are financial equals. Further, both are business entities who sell a product or perform a service which is ultimately paid for by SAS’s customers. As a result, “[w]hether the loss is thrust initially upon the manufacturer (United) or consumer (SAS), it is ultimately passed on as a cost of doing business included in the price of the products of one or the other and thus spread over a broad commercial stream”. Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 748, 127 Cal.Rptr. 838, 845 (1976). Unlike the consumers in Greenman, Seely and Price, SAS can allocate its risk of loss equally as well as United. Therefore, the societal interest in loss shifting present in those cases is absent here.
Although of less significance than the risk spreading rationale, several other policies have been identified as underlying the doctrine of strict products liability in California. The consumer’s difficulty in inspecting for defects has impliedly been stated as a reason for its application. Halliday v. Greene, 244 Cal.App.2d 482, 53 Cal.Rptr. 267 (1966). Another policy concerns the difficulty a consumer faces in trying to prove negligence. Cronin v. JBE Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, 1162 (1972). In Daly, 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, the court stated:
We imposed strict liability against the manufacturers and in favor of the user or consumer in order to relieve injured consumers “from problems of proof inherent in pursuing negligence . . and warranty . remedies, . . .” (citations omitted)
Id. 20 Cal.3d at 736, 144 Cal.Rptr. at 386, 575 P.2d at 1168.
Finally, “[t]he rule of products liability is further rationalized as an inducement to manufacturers to design and produce a safe product . . . , and as a means to avoid the artificial conditions to recovery in warranty created by the rules of privity”. Kaiser Steel Corp., 55 Cal.App.3d at 747, 127 Cal.Rptr. at 844.
Here, SAS had the expertise and personnel to inspect the engines for defects. SAS does not have the lack of technical knowledge and expertise which would burden members of the general public in proving negligence in designing or manufacturing the engines. SAS does not face problems of privity as an artificial barrier which the doctrine of strict liability seeks to avoid. Finally, the fact that United will still be liable to airline passengers for any injuries they receive as the result of defective United products will serve as a significant deterrent from manufacturing unsafe products.
The trial judge’s decision finds strong support in Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 127 Cal.Rptr. 838. There the California Court of Appeal stated:
. •. . [T]he doctrine of products liability does not apply as between parties who: (1) deal in a commercial setting; (2) from positions of relatively equal economic strength; (3) bargain the specifications of the product; and (4) negotiate concerning the risk of loss from defects in it. Southwest Forest Indus. v. Westinghouse Elec. Corp. (9th Cir. 1970), 422 F.2d 1013, cert. denied 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138.
Id. at 748, 127 Cal.Rptr. at 845.
Interpreting these four requirements as the court did in Kaiser leads us to the conclusion that SAS does not have a claim in strict tort liability against United. SAS, United and McDonnell Douglas dealt in a commercial setting from positions of relatively equal economic strength. The specifications of the engines were negotiated by the parties. Finally, McDonnell Douglas, United and SAS all negotiated the risk of loss for defects in the engines.
We find, therefore, that the trial judge was correct in his interpretation of California law and that the doctrine of strict liability is not available to SAS in this case.
Affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - torts - product liability?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_usc1
|
11
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
MILENS v. BOSTIAN (two cases).
Nos. 12677, 12678.
Circuit Court of Appeals, Eighth Circuit.
Dec. 28, 1943.
A. J. Granoff, of Kansas City, Mo. (Julius C. Shapiro and Myer M. Rich, both of Kansas City, Mo., on the brief), for appellants.
Nelson E. Johnson, of Kansas City, Mo. (C. E. Thomson, of Kansas City, Mo., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
The referee in bankruptcy on February 4, 1943, in a summary proceeding in the Matter of Bessie Eichenberg, Bankrupt, entered an order and judgment determining that the bankrupt had an undivided one-fourth interest in the estate of her deceased brother, Harry C. Milens, that her trustee in bankruptcy was entitled to her interest, and that a purported renunciation of it, made by her, was void. The order and judgment voided the renunciation and required the administrator of the estate of Harry C. Milens to turn over to the trustee in bankruptcy “an undivided one-fourth (*4) interest in the estate of the said Harry C. Milens, deceased, subject to the payment of the valid debts of said estate, and the costs of administration therein, at such time as an order of distribution may be entered in said estate by the Probate Court of Jackson County, Missouri.” The order and judgment permanently enjoined the administrator from transferring this undivided interest to any person other than the trustee in bankruptcy. On petition to review, the order and judgment was affirmed by the District Court.
These appeals, one by the administrator of the estate of Harry C. Milens, deceased, and the other by an heir of the deceased, challenge the jurisdiction of the court of bankruptcy to enter the summary order and judgment.
The facts out of which the controversy arises are not in dispute. In 1935, in a State court of Missouri, L. E. Fenton obtained a judgment for $29,392.28 against Bessie Eichenberg, upon which nothing has been paid. On February 1, 1942, Harry C. Milens, her brother, died intestate, leaving her and her sister, Rebecca Westerman, and two brothers, M. G. Milens and Charles E. Milens, as his sole heirs. On February 5, 1942, the Probate Court of Jackson County, Missouri, appointed M. G. Milens administrator of the estate of Harry C. Milens, deceased. The estate was valued at more than $90,000. On May 25, 1942, Bessie Eichenberg executed a renunciation and disclaimer of any interest in the estate. This instrument was dated March 9, 1942, and was directed to and served upon M. G. Milens, administrator. No consideration was paid for the renunciation, and Bessie Eichenberg was insolvent when she executed it. On July 20, 1942, an involuntary petition in bankruptcy was filed against her. On August 5, 1942, she was adjudged a bankrupt, and William B. Bostian was appointed trustee in bankruptcy of her estate.
On September 19, 1942, the trustee filed with the referee a petition for the entry of the order and judgment which the appellants now challenge. The petition asserted, in substance, that the bankrupt’s renunciation of her interest in the estate of her deceased brother was a transfer of her property within one year of the filing of the petition in bankruptcy and while she was insolvent, and was void; that the trustee was entitled to her interest in the estate; and that M. G. Milens, administrator, unless restrained, would distribute the interest of the bankrupt to the other heirs of Harry C. Milens. An order was issued by the referee and served upon M. G. Milens, individually and as administrator, Charles E. Milens, Rebecca Westerman, and the bankrupt, directing them to show cause why the prayer of the petition should not be granted.
■ At the hearing upon the petition, M. G. Milens, as administrator, appeared specially and objected to the jurisdiction of the referee. Charles E. Milens also entered a special appearance and objected to the jurisdiction on the ground that he was an adverse claimant “to a right, title and interest in said estate of Harry C. Milens, Deceased, of the asserted one-fourth interest therein, of said bankrupt, when and as the same may be distributed, and become due and payable.” Rebecca Westerman did not appear, although she testified as a witness. The bankrupt filed a motion to dismiss the petition upon the ground that it stated no claim upon which relief could be granted, and because the court of bankruptcy was without jurisdiction of the subject matter.
The referee overruled the objections to his jurisdiction, denied the motion of the bankrupt to dismiss, and entered the order appealed from. He determined that the bankrupt had a vested equitable interest in her deceased brother’s estate which she could not transfer in fraud of her creditors; that she had, prior to her purported renunciation, signed a document evidencing her intention to accept her interest in the estate; that she was guilty of fraud and collusion in attempting to renounce her interest; and that the administrator of the estate of her deceased brother holds her undivided one-fourth interest in that estate in trust for the trustee in bankruptcy.
It is conceded that, at the time the order and judgment appealed from was entered, the estate of Harry C. Milens was being administered by the Probate Court of Jackson County, Missouri, that the assets of the estate were in the custody and possession of M. G. Milens as administrator, and that no decree of distribution had been entered.' It is also conceded that the courts of Missouri have not as yet determined what effect (if any) the renunciation by an heir of an interest in the estate of an intestate has upon the rights of creditors of the heir who renounces, or upon the rights of the other heirs of the intestate. The object of the summary proceeding brought by the trustee in bankruptcy was to obtain a determination that he alone was entitled to the share of the estate of Harry C. Milens which he (the trustee) asserted belonged to the bankrupt at the time of the filing of the petition in bankruptcy, and to make certain that he would ultimately secure possession of that share.
The referee and the District Judge were of the opinion that the right of Bessie Eichenberg to share in the estate of her deceased brother — which right they concluded she still owned at the time of the filing of the petition in bankruptcy — empowered the bankruptcy court to enter the order and judgment which is challenged. They determined that it was not necessary for the trustee in bankruptcy to bring a plenary suit to obtain the bankrupt’s share of her deceased brother’s estate.
We think that the case of Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, indicates that summary jurisdiction cannot be sustained in the instant case. The Supreme Court said in that case (page 481 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876): “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.”
Assuming that Bessie Eichenberg’s right to an undivided one-fourth share of her deceased brother’s estate was not affected by her renunciation, she had, at the time of the filing of the petition in bankruptcy, neither the possession nor the right to the possession of any of the property belonging to that estate. All of the property of the estate was in the possession and custody of M. G. Milens as administrator. He had been appointed by, and was subject to the jurisdiction of, the Probate Court of Jackson County, Missouri. He was not the agent or bailee of the bankrupt. He was the agent of the Probate Court, and as such held in custody the property of the estate for administration in accordance with the laws of Missouri and the directions of that court. Rollins v. Shaner, 316 Mo. 953, 292 S.W. 419, 421. In Cook v. McCoy, Mo.App., 118 S.W.2d 1043, 1046, it was held, in effect, that an heir is not entitled to his distributive share of an estate until all debts and charges against the estate have been paid and an order of distribution has been entered, and that an administrator is not liable to suit by an heir until that time. In Bank of Hamburg v. Tri-State Savings & Loan Ass’n, 8 Cir., 69 F.2d 436, page 438, this Court, after pointing out that, under the laws of Arkansas, an administrator was entitled to-the possession of the land belonging to a decedent, said: “With the above state of law in Arkansas as to the rights of possession in this administratrix, which began far more than four months before the petition in bankruptcy was filed, it seems to us there could be no such character of right of possession in this bankrupt sufficient to constitute a basis for possession in the bankruptcy court as a ground of jurisdiction. The probate court clearly had the sole right to jurisdiction over and possession of this land several years before the bankruptcy proceeding; the administration in the probate court is still in course with unpaid debts for which this land is liable; and nothing has been done by that court to, in any wise, weaken or affect its jurisdiction over and its right to exclusive possession of this land.”
Compare Marcell v. Engebretson, 8 Cir., 74 F.2d 93, 96, 97, and Thompson v. Terminal Shares, Inc., 8 Cir., 104 F.2d 1, 9. See also 11 U.S.C.A. § 46.
There is another reason why we think that the court of bankruptcy should not have proceeded summarily. No matter how improbable it is that the courts of Missouri will rule that the renunciation by an insolvent heir of his interest in the estate of an intestate is effective as against creditors, the question is one of State law which has not been settled. It is conceivable that the turn-over order made by the court of bankruptcy may conflict with the order of distribution ultimately to be entered by the Probate Court of Jackson County. We think that the possibility of such a conflict is to be avoided. The Supreme Court of the United States in Thompson v. Magnolia Petroleum Co., supra, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876, was of the opinion that where a trustee, appointed by a court of bankruptcy, sought to recover property claimed by others, and his claim depended upon the title of the debtor to the property, and the title depended upon an unsettled question of state property law, the bringing of a plenary suit in a state court by the trustee was the course to follow.
We conclude that the court of bankruptcy lacked summary jurisdiction to enter the order and judgment appealed from against M. G. Milens, as administrator. The court of bankruptcy can, however, enjoin him, pending the bringing of a plenary suit by the trustee, from distributing the share of the estate of Harry C. Milens to which the trustee claims to be entitled. Steelman v. All Continent Corp., 301 U.S. 278, 287, 57 S.Ct. 705, 81 L.Ed. 1085; Thompson v. Magnolia Petroleum Co., supra, page 483 of 309 U.S., page 630 of 60 S.Ct., 84 L.Ed. 876. We conclude also that the controversy between the trustee and Charles E. Milens could not, over objection, be determined by the court of bankruptcy in a summary proceeding.
The order and judgment appealed from, in so far as it affects the appellants, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES FIDELITY & GUARANTY CO., Appellant, v. CENTROPOLIS BANK OF KANSAS CITY, MO., a CORPORATION, et al., Appellees.
(Circuit Court of Appeals, Eighth Circuit.
February 16, 1927.)
No. 7412.
Appeal from the District Court of the-United States for the Western District of Missouri; Merrill E. Otis, Judge.
Whitson Rogers and Ellison A. Neel, both.of Kansas City, Mo. (Armwell L. Cooper,. of Kansas City, Mo., and Joseph A. McCullough and John M. McFall, both of Baltimore, Md., on the brief), for appellant.
Leslie J. Lyons and Ilus M. Lee, both of Kansas City, Mo. (R. R. Brewster and Henry M. Griffith, both of Kansas City, Mo., on the brief), for appellees.
Before BOOTH, Circuit Judge, and PHILLIPS and JOHN B. SANBORN, District Judges.
PHILLIPS, District Judge.
This appeal presents the same questions of law upon substantially the same state of facts which were considered and decided in United States Fidelity & Guaranty Company v. Centropolis Bank of Kansas City, Missouri, a Corporation, et al. (No. 7411; opinion filed February 9, 1927) 17 F.(2d) 913.
On the authority of that ease, the decree of the trial court is reversed, and the cause is remanded, with instructions to modify the decree and award the appellant a mandatory injunction, directing and commanding C. E. French, commissioner of finance, and H. F. Lawrence, deputy commissioner of finance, to allow the claim of the appellant against the assets of the Centropolis Bank of Kansas City, Mo., and to pay to the appellant dividends thereon, pro rata with the general creditors of the bank.
The costs of the appeal will be assessed equally against Jackson county and the commissioner of finance as liquidating officers of the bank.
It is so ordered.
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_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Richard DURHAM, et al., Plaintiffs-Appellees, v. BUSINESS MANAGEMENT ASSOCIATES, et al., Defendants, Somers & Altenbach, Defendant-Appellant. Richard DURHAM; Merrill R. Barron; Peter S. Verrill; Khalid L. Khan; Donald J. Gale; Phillip Gilchrist; Wray A. Hammer; Jesse D. Hester; Mamoun R. Pacha; Richard G. O’Leary; Samuel Staggers, Jr.; Maurice F. Mc Carthy, Jr.; Robert E. Hallett; James B. Threlkel; Wade Faulkner; Shailesph P. Upadhyay; Mohammed A. Mohiuddin and Timothy L. Eakes, Plaintiffs-Appellees, v. BUSINESS MANAGEMENT ASSOCIATES; Executive Counsel, Inc.; Robert M. Fulmer; Robert J. Underwood; Underwood Financial Planning, Inc., and William B. Aylor, Defendants-Appellants, McGraw-Hill Information Systems Company, et al., Defendants. Richard DURHAM; Merrill R. Barron; Peter S. Verrill; Khalid L. Khan; Donald J. Gale; Phillip Gilchrist; Wray A. Hammer; Jesse D. Hester; Mamoun R. Pacha; Richard G. O’Leary; Samuel Staggers, Jr.; Maurice F. Mc Carthy, Jr.; Robert E. Hallett; James B. Threlkel; Wade Faulkner; Shailesph P. Upadhyay; Mohammed A. Mohiuddin and Timothy L. Eakes, Plaintiffs-Appellees, v. BUSINESS MANAGEMENT ASSOCIATES; Executive Counsel, Inc.; Robert M. Fulmer; Robert J. Underwood; Underwood Financial Planning, Inc., and William B. Aylor, Defendants, McGraw-Hill Information Systems Company, Defendant-Appellant.
Nos. 87-7453 to 87-7455.
United States Court of Appeals, Eleventh Circuit.
June 23, 1988.
Maynard, Cooper, Frierson & Gale, P.C., N. Lee Cooper, A. Inge Selden, III, Luther M. Dorr, Jr., Birmingham, Ala., for McGraw-Hill.
Michael D. McKibben, H. Douglas Hin-son, Bradley, Arant, Rose & White, Birmingham, Ala., for Underwood and Underwood Financial Planning.
Steven F. Casey, Balch & Bingham, John F. Mandt, Stanley M. Brock, Birmingham,' Ala., for Durham, et al.
Crawford S. McGivaren, Jr., Cabaniss, Johnston, Gardner, Dumas & O’Neal, Sara Eugenia Akin, Inger M. Sjostrom, Birmingham, Ala., for Somers & Altenbach.
G. Thomas Yearout, Brett N. Blackwood, Birmingham, Ala., for R.M. Fulmer and Executive Council.
Corley, Moncus, Bynum & DeBuys, P.C., John F. DeBuys, Jr., E. Clayton Lowe, Jr., Birmingham, Ala., for Business Management and William Aylor.
Before VANCE, Circuit Judge, TUTTLE , Senior Circuit Judge, and LYNNE , Senior District Judge.
See Rule 34-2, Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Seyboum H. Lynne, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
VANCE, Circuit Judge:
In this complex securities fraud action appellants appeal from the district court’s order denying their motion for summary judgment. We affirm.
I.
Appellees initiated this action on September 10, 1986 by filing a complaint in the United States District Court for the Northern District of Alabama. Appellees sought to recover damages for alleged violations of federal securities law and state law. The district court dismissed the original complaint, but granted appellees leave to amend so that they could defeat a statute of limitations bar. Appellees timely filed an amended complaint on February 6,1987.
The amended complaint contains claims identical to the claims in the original complaint and alleges additional facts in an attempt to avoid a statute of limitations bar. Appellees’ claims are based on alleged violations of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), sections 12(2) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77Z(2), 77q(a), sections 8-6-17, 8-6-19, and 6-5-100 through 6-5-104 of the Alabama Code, as well as common law claims of fraud, negligence and breach of fiduciary duty. The district court summarily dismissed with prejudice the claims under section 12(2), section 17(a) and Alabama Code sections 8-6-17 and 8-6-19. The district court stated that it could not determine whether the statute of limitations barred the section 10(b), fraud and negligence claims as a matter of law or whether “the RICO claim(s) should be dismissed as a matter of law.” Accordingly, the district court denied the motions for summary judgment. Noting that its opinion “involves a controlling question of law as to which there is a substantial ground for difference of opinion,” the district court certified the case for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This court subsequently granted appellants’ petitions for interlocutory appeal.
The undisputed facts in this case are as follows: Business Management Associates (“BMA”), a limited partnership, was formed in 1981. The purpose of the partnership was to acquire and market a series of business management video cassettes. Appellants Executive Counsel, Inc. (“ECI”) and Robert M. Fulmer, an officer of ECI, agreed to produce twenty master tapes for BMA’s distribution. The master tapes, from which copies would be produced for sale to the business community, were to be the partnership’s only assets.
In late 1981 appellees subscribed for units of limited partnership interest in BMA. As a part of the offering each investor received a Private Placement Memorandum which outlined the structure of the limited partnership. The Private Placement Memorandum contained an appraisal, prepared by appellant McGraw-Hill, of the value of the master tapes and a tax opinion, prepared by appellant Somers & Alten-bach, which described the expected income tax consequences of the partnership’s activities. The memorandum also explained that the limited partners would receive periodic financial information as required by the partnership agreement. Appellants Robert J. Underwood and Underwood Financial Planning, Inc, (“UFPI”) acted as underwriters for the offering and thereafter represented the investors as information agents in connection with the investment.
The parties dispute the extent of communications received by appellees over the next two years. Appellants maintain that appellees were advised of the low sales volume during this period and point to a July 1983 memorandum which alerted investors to the disappointing number of sales. Appellees on the other hand, argue that they did not receive the tax information as asserted by appellants McGraw-Hill and Somers & Altenbach and that the July 1983 memorandum, while acknowledging that sales had been disappointing, did not indicate the complete failure of the partnership or its operation as a sham. In 1984 the IRS began to examine the 1981 and 1982 tax returns of the partnership. Ap-pellees allege that in late October 1984 they initially became aware of possible adverse IRS action. Asserting that the partnership was a sham and that they were not alerted to the possibility of fraud until advised of the 1984 IRS action, appellees seek to recover damages for alleged violations of federal securities law and state common law.
II.
Appellants argue that appellees’ claims are time-barred and that the district court erroneously denied the motions for summary judgment. The statute of limitations for a section 10(b) action is the limitations period the forum state applies to the cause of action “which bears the closest resemblance” to the federal claim. Kennedy v. Tallant, 710 F.2d 711, 716 (11th Cir.1983); Diamond v. Lamotte, 709 F.2d 1419, 1421 (11th Cir.1983); White v. Sanders, 650 F.2d 627, 629 (5th Cir. Unit B 1981). But see In re Data Access Sys. Sec. Litig., 843 F.2d 1537 (3d Cir.1988) (in banc) (other provisions of the 1934 Securities Exchange Act are more analogous to section 10(b) actions, and the limitations period governing companion provisions of the Act should apply to section 10(b) actions). In this case, the district court properly applied Alabama’s two-year statute of limitations applicable to actions for the fraudulent sale of securities. See Ala.Code § 8-6-19(e); Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1013 (11th Cir.1986).
While state law governs the limitations period applicable to a section 10(b) action, federal law governs when the limitations period begins to run. Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1535 (11th Cir.1987), petition for cert. filed sub nom., Osterneck v. Ernst & Whinney, 56 U.S.L.W. 3530 (U.S. Jan. 15, 1988) (No. 87-1201); Kennedy, 710 F.2d at 716; White, 650 F.2d at 630. Federal law provides that the statute of limitations for an action under section 10(b) begins to run when the plaintiff discovers, or in exercise of reasonable diligence should have discovered the alleged violations. Kennedy, 710 F.2d at 716; Diamond, 709 F.2d at 1420 n. 1; see also Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 10 (5th Cir.1967). In other words “what matters is not when the information was actually known, but rather when in the exercise of due diligence it should have been known.” Hunt, 783 F.2d 1011, 1014.
A similar standard applies to the commencement of the limitations period for fraud and negligence actions under Alabama law. In fraud actions Alabama Code section 6-2-3 tolls the limitations period until the “fraud is readily discoverable or the potential plaintiff is on notice that a fraud may have been perpetrated.” Lampliter Dinner Theater v. Liberty Mut. Ins. Co., 792 F.2d 1036, 1043 (11th Cir.1986). Alabama courts have applied this tolling provision in other tort actions not arising in fraud. See Tonsmeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465, 467 (1970). Like the federal due diligence standard, Alabama law provides that the “fraud is ‘deemed to have been discovered ... at the time of the discovery of facts which would provoke inquiry by a person of ordinary prudence and which, if followed up, would have led to the discovery of the fraud.’ ” Ramp Operations, Inc. v. Reliance Ins. Co., 805 F.2d 1552, 1554-55 (11th Cir.1986) (quoting Papastefan v. B & L Constr. Co., 385 So.2d 966, 967 (Ala.1980)).
? argue that the amended complaint is “virtually devoid” of any showing of due diligence. They point out that the partnership agreement required the partnership to provide each limited partner with periodic, detailed financial information and permitted any limited partner to inspect the partnership’s books at any reasonable time. Appellants maintain that although appellees allege that they did not receive any financial information during a two year period, appellees failed to allege that they requested or were refused access to this information. Appellants also argue that in a July 1983 memorandum received by appellees, appellant Underwood informed limited partners of the “dismal” sales record. Appellants maintain that ap-pellees had ample “storm warnings” prior to September 10, 1984, two years before this action was filed, to alert them to “serious financial problems with their investment.” General Builders Supply Co. v. River Hill Coal Venture, 796 F.2d 8 (1st Cir.1986).
Appellees contend that they did not discover the fraud until late 1984 when they received an IRS report indicating that the partnership was a sham. They maintain that the amended complaint contains several facts which show that a reasonable investor would not have discovered the fraud more than two years prior to the filing of this action. Appellees also argue that they should be held to a lower standard of due diligence due to the fiduciary relationship between the limited partners and the general partner. See Sperry v. Barggren, 523 F.2d 708, 711 (7th Cir.1975).
The question of due diligence is the key issue in determining the appropriateness of summary judgment in this case. Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Fed.R. Civ.P. 56(c). When considering due diligence on a motion for summary judgment, the court must recognize that the issue is often a question of fact. “The concept of due diligence is not imprisoned within the frame of a rigid standard; it is protean in application.” Azalea Meats, 386 F.2d at 9. As the Fifth Circuit stated: “Inevitably the factual issue of due diligence involves, to some extent at least, the state of mind of the person whose conduct is to be measured against this test and it is simply not feasible to resolve such an issue on motion for summary judgment.” Id. at 10; see Kennedy, 710 F.2d at 716 (“questions of notice and due diligence are particularly suited for a jury’s consideration”). Thus, summary judgment is appropriate only where no reasonable jury could differ as to whether the plaintiffs exercised due diligence in discovering the fraud.
The central dispute in this case is whether appellees satisfied the due diligence requirement in light of the information they received. The parties disagree about how a reasonable person would have reacted to the alleged lack of communication and what inferences could have been drawn from the July 1983 memorandum. The dispute concerning the receipt of partnership sales revenues and the interpretation of the July 1983 memorandum creates a genuine issue of material fact as to appellees’ due diligence. Accordingly, the district court properly denied the motion for summary judgment.
III.
Appellant Aylor asserts that appellees may not maintain an action against him under section 10(b) and Rule 10b-5 for his purported involvement with the alleged fraudulent issuance of BMA limited partnership interests. Aylor replaced the original general partner, Steve Davis, on December 2,1981. Shortly thereafter the limited partners were given an opportunity to rescind their purchase. The rescission offer extended the original offering until December 31, 1981. At the time of the rescission offer all but two appellees had already subscribed for an interest in the partnership. In the amended complaint appellees allege that Aylor’s assumption of the general partner position “was a substantial factor in each plaintiff’s decision not to rescind” and that Aylor became responsible for the completeness of the Private Placement Memorandum. The amended complaint also alleges that the rescission offer was misleading because it did not explain fully the reason for Davis’ resignation as general partner.
Only purchasers and sellers of securities may maintain an action under Rule 10b-5. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 731, 95 S.Ct. 1917, 1923, 44 L.Ed.2d 539 (1975); see Birnbaum v. Newport Steel Corp., 193 F.2d 461, 463 (2d Cir.) (rule 10b-5 actions are limited to “actual purchasers and sellers”), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952). We find that the facts are not sufficiently developed for determining whether appellees satisfy this rule. Although appellees stated during oral argument that appellees made no payment for their interests until after the rescission offer, the Private Placement Memorandum and the rescission offer suggest that appel-lees made an initial payment at the time of subscription. If the sale had been completed before the change in general partners, then Aylor is not subject to liability. If, however, the sale was not completed at the time of the rescission offer, Aylor remains subject to potential liability. Since the facts as developed do not demonstrate clearly and without dispute that any fraud committed with respect to the rescission offer was committed after the purchase was finalized, the district court properly denied summary judgment.
IV.
Appellees’ amended complaint also contains a claim for an alleged violation of the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68, by four of the appellants. Appellees maintain that the limited partnership investment scheme and a “Free Enterprise Scheme” form the basis of their RICO claim. To state a claim under RICO a plaintiff must allege each of the following four elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). RICO defines racketeering activity as any act indictable under 18 U.S.C. §§ 1341 and 1343, the mail and wire fraud provisions, or “any offense involving ... fraud in the sale of securities.” 18 U.S.C. § 1961(1). To establish a pattern of racketeering activity there must be at least two predicate acts of racketeering activity. Id. § 1961(5). Although two predicate acts are a prerequisite to establishing a pattern of racketeering activity, they are not by themselves sufficient. Sedima, 105 S.Ct. at 3285 n. 14. Interpreting the Sedima language, this court has stated that “to establish a pattern there must be a showing of more than one racketeering activity and the threat of continuing activity.” Bank of America Nat’l Trust & Sav. Ass’n. v. Touche Ross & Co., 782 F.2d 966, 971 (11th Cir.1986).
To establish the second predicate act, appellees allege in the amended complaint that the RICO appellants promoted and sold subscriptions for interests in a venture named the “Free Enterprise Program Investment.” The amended complaint alleges that the venture was structured in the following manner: Investors subscribed for units of interest in the venture, which produced a cassette library. The cassette library consisted of five video cassette tapes prepared by appellants ECI and Fulmer. Upon payment of a purchase price and an investment advisory fee, investors were issued a certificate of interest in the cassette library. Investors were advised that they could either sell the cassette tapes or “consider the idea of donating the assets to charity.” The RICO appellants provided information on how to sell the tapes and the tax benefits associated with a charitable contribution.
The RICO appellants argue that the Free Enterprise Scheme may not be used as one of the requisite predicate acts. They contend that the amended complaint does not adequately allege a RICO violation because the amended complaint contains only con-clusory allegations of the venture’s use of the mails. Relying on Doxie v. Ford Motor Credit Co., 603 F.Supp. 624, 627-28 (S.D.Ga.1984), appellants maintain that Rule 9(b) of the Federal Rules of Civil Procedure requires fraud to be pleaded with particularity and that the amended complaint fails to plead mail fraud with the required particularity.
The particularity rule serves an important purpose in fraud actions by alerting defendants to the “precise misconduct with which they are charged” and protecting defendants “against spurious charges of immoral and fraudulent behavior.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985). The application of the rule, however, must not abrogate the concept of notice pleading. Friedlander v. Nims, 755 F.2d 810, 813 n. 3 (11th Cir.1985); see also Howell Petroleum Corp. v. Weaver, 780 F.2d 1198, 1199 (5th Cir.1986). Allegations of date, time or place satisfy the Rule 9(b) requirement that the circumstances of the alleged fraud must be pleaded with particularity, but alternative means are also available to satisfy the rule. Seville, 742 F.2d at 791; Shared Network Technologies, Inc. v. Taylor, 669 F.Supp. 422, 429 (N.D.Ga.1987). In addition to the allegations in the amended complaint appel-lees also submitted an affidavit by appellee Eakes to show that appellants corresponded by mail with the Free Enterprise Scheme investors. We believe that the allegations contained in the amended complaint and the affidavit before the district court on the motion for summary judgment satisfy the requirements of Rule 9(b).
Appellants also argue that appellees failed to establish a pattern of racketeering because they failed to allege the requisite “threat of continuing activity.” See Touche Ross & Co., 782 F.2d at 971. They note that the two alleged schemes were independent, isolated events and “strikingly dissimilar.” We disagree. In an attempt to better define the pattern requirement the Supreme Court quoted language from another provision of the RICO Act defining “pattern” as follows: “conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Sedima, 105 S.Ct. 3275, 3285 n. 14. Although the two schemes in this action involved different investors, the acts are sufficiently similar to withstand a motion for summary judgment. The use of business instructional video cassette tapes, the alleged promises of tax benefits and alleged inflated appraisals which led to IRS denial of tax benefits create a degree of similarity between the two schemes. While we recognize the various facts asserted by appellants distinguishing the schemes, these contentions illustrate that there is an issue of material fact as to the similarity of the two predicate acts. The district court therefore properly denied the motion for summary judgment.
V.
For the foregoing reasons, we affirm the district court’s order denying appellants’ motion for summary judgment.
AFFIRMED.
. Appellees do not contend that the district court improperly dismissed these claims.
. Since affidavits and other supporting materials were presented to the court, the district court treated the appellants’ motions to dismiss as motions for summary judgment.
. The parties agree that if the information concerning the alleged § 10(b) violation was not discovered or reasonably discoverable by September 10, 1984 then the complaint was timely.
. A recent statutory provision, Ala.Code § 6-2-38, extends the limitations period to two years for tort actions. Appellants allege that the statute does not apply retroactively, and that the previous one-year statute of limitations should apply to the common law fraud and negligence claims. We disagree. When a new statute of limitations is enacted before a cause of action is barred by the previous statute of limitations, the statute in effect at the time the action is commenced applies. Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 269 (Ala.1981). Accordingly, the question of which limitations period controls will depend on when the appellees discovered or should have discovered the alleged fraud.
. Appellants argue that the facts in General Builders are nearly identical to the facts in this case. In General Builders the First Circuit held that the investors in a coal mining venture had adequate "inquiry notice” before November 15, 1980, three years before the action was filed, and that the investors’ action thus was barred by the statute of limitations. 796 F.2d at 13-14. Appellants’ reliance on General Builders is misplaced. The plaintiffs in General Builders were joint venturers who, according to the court, had "a unique opportunity to adequately investigate the true status of their investments.” Id. at 13. This case, in contrast, involves limited partners who, due to the organizational structure, have a very limited role in the venture. Additionally, the First Circuit identified two specific, undisputed facts which provided ample warning that the coal investment faced serious economic problems. Id. The controversy surrounding the facts in this case, however, prevents this court from drawing any legal conclusions with respect to the amount of information available to appellants.
. Appellees argue that the following facts support this allegation:
(1) the Investors were passive investors in the Partnership who were legally entitled and indeed required to refrain from active participation in or supervision of the partnership’s day to day activities;
(2) the Investors reasonably relied on advice concerning their investment from their SEC-registered investment advisor and the Partnership’s attorneys from 1981 to 1986, and reasonably relied on such persons to monitor the status of their investment and protect their interests;
(3) the Investors were unaware of the true nature of the Partnership’s marketing activity and sales performance and in fact, were led to believe meaningful efforts at marketing were taking place;
(4) the Investors understood that the Partnership’s business was in the start-up phase and
(5) until they learned of possible adverse IRS action the Investors were unaware of the facts found by IRS ... and thus had no reason to believe they had been defrauded.
. Appellees alternatively allege that appellants concealed the fraudulent character of the scheme. They contend that the allegations of fraudulent concealment are sufficient to survive summary judgment. Appellees point to several representations made by appellants before and after September 10, 1984 which they view as attempts to conceal that the partnership and offering were a sham. Appellants maintain that the 1981 Private Placement Memorandum warned appellees of possible adverse IRS action and therefore appellees may not maintain that "profitability and tax consequences of their investment in BMA were concealed from them.” We view the issue of fraudulent concealment as irrelevant at this point due to our belief that the issue of due diligence is an issue for the trier of fact. We note, however, that the question of whether appellees in the exercise of due diligence should have discovered the alleged violations prior to September 10, 1984, requires the trier of fact to consider the doctrine of fraudulent concealment as well as the presence of a fiduciary relationship. See Azalea Meats, 386 F.2d at 9; Hupp v. Gray, 500 F.2d 993, 997 (7th Cir.1974) (court should consider the existence of a fiduciary relationship, the nature of the alleged fraud, one’s opportunity to discover the fraud and the subsequent actions of the defendant in determining whether the plaintiff exercised due diligence).
. The rescission offer provided for a refund of the purchase price paid by the limited partner plus interest from the date of payment.
. The RICO appellants include ECI, Fulmer, Underwood and UFPI.
. Only appellee Thomas A. Eakes participated in the Free Enterprise Scheme.
. The amended complaint contains the following allegation which appellants characterize as conclusory:
Correspondence and other communications concerning the Free Enterprise Scheme took place through means or instrumentalities of interstate commerce, including without limitation, the mails.
The unlawful actions comprising the Free Enterprise Scheme ... constituted 'racketeering activity1 as defined in 18 U.S.C. § 1961 in that such actions constituted fraud in the sale of securities and mail fraud under 18 U.S.C. § 1341.
. The Eakes affidavit states:
I received a Confidential Offering Circular and certain related documents through the mails by letter dated December 31, 1979, from Terrance M. Gill, one of the promoters of the Free Enterprise Program .... From time to time during the next several years, I received correspondence related to this investment through the mail from Mr. Gill and Robert B. Fulmer, another promoter of the program.... I also forwarded signed copies ... through the mails ... and received Mr. Underwood’s invoice through the mail.
. The RICO appellants also argue that the Free Enterprise Scheme may not be used as one of the predicate acts because it does not involve the sale of securities. While it is possible that the Free Enterprise Scheme may be viewed as a sale of securities, we do not address this issue due to our conclusion that the amended complaint contains adequate allegations of mail fraud.
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:
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songer_appel1_7_5
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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).
Stephen LUMETTA, Appellant, v. UNITED STATES of America, Appellee.
No. 18170.
United States Court of Appeals Eighth Circuit.
June 23, 1966.
Rehearing Denied Aug. 23, 1966.
J. A. Gochenour, St. Louis, Mo., for appellant ; Charles R. Cuntz, St. Louis, Mo., on the brief.
Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. Fitz-Gibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.
Before VOGEL, Chief Judge, MEHAFFY, Circuit Judge, and McMANUS, District Judge.
MEHAFFY, Circuit Judge.
Lumetta, president of Stephens Cement Contractors, Inc., (Stephens) appeals from convictions upon each count of a three-count indictment charging the willful failure to file tax returns for Stephens in violation of 26 U.S.C.A. § 7203. Each count alleged a separate offense for the fiscal years ending March 31, 1959, 1960 and 1961. A jury found Lumetta guilty on each count and the court sentenced him to a term of one year for each violation, the sentences to run concurrently. He was also fined $500 on each of the three counts, for a total fine of $1,500.
Lumetta first assigns as error the admission of evidence reflecting the corporation’s income for the years involved. A government witness summarized the substantial receipts and disbursements of Stephens for the years in question, using as a basis a schedule prepared from trial testimony, stipulations and exhibits. The summary reflected profits for each year. Summary type of evidence has long been approved. Hoyer v. United States, 223 F.2d 134, 138 (8th Cir. 1955) and cases cited. Lumetta asserts, however, that the existence or amount of net income is not the gist of the offense and for that reason inadmissible. The testimony was admitted as relevant to the issue of whether Lumetta’s failure to file was willful. This evidence indicated that Stephens was a going concern dealing in substantial amounts of money and operating at a profit; and that had Lumetta filed a return it would have shown a tax owing to the government. The aforementioned factors were relevant because of defenses interposed as well as to show Lumetta’s willfulness in failing to file the returns. The jury could properly take all of them into consideration in reaching its decision. No case has been cited on the precise question of admissibility of this type evidence in such cases as this and ■our research has disclosed none but such evidence appears without challenge in a numerosity of cases. E.g. Hellman v. United States, 339 F.2d 36 (5th Cir. 1964). See also United States v. Cirillo, 251 F.2d 638, 639 (3rd Cir. 1957), cert. denied, 356 U.S. 949, 78 S.Ct. 914, 2 L.Ed. 2d 843 (1957); Yarborough v. United States, 230 F.2d 56, 58 (4th Cir. 1956), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956). We hold, in addition to the necessity here to combat the ■defenses, that the disputed evidence was proper for the jury’s determination of the ■question of willfulness in failure to file the tax returns.
In addition, Lumetta asserts as error the use of the evidence because government witness O’Donnell omitted from "the deductible expenses an alleged attorney’s fee incurred by Stephens and an alleged salary of $150 per week payable “to Lumetta. There is no evidence reflecting the liability for either of these items in Stephens’ books and records ■even though this evidence was available to Lumetta.
Even assuming the evidence would establish that both omitted expenses had in Tact been incurred, the result would not change. If the deductions were allowed, “the resulting figures would still show ■substantial receipts and disbursements. The exact amount of profits is not significant and such a slight discrepancy does not result in prejudicial error. See Fowler v. United States, 352 F.2d 100, 109 (8th Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). See also McKenna v. United States, 232 F.2d 431 (8th Cir. 1956) ; United States v. Burdick, 221 F.2d 932 (3rd Cir. 1955), cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742 (1955); United States v. Chapman, 168 F.2d 997 (7th Cir. 1948), cert. denied, 335 U.S. 853, 69 S.Ct. 82, 93 L.Ed. 401 (1948); Rose v. United States, 128 F.2d 622 (10th Cir. 1942).
Lumetta alleges that it was an error for the trial court to overrule his motion for judgment of acquittal at the close of the government’s case. In support of this position Lumetta argues that (1) the government failed to prove willfulness; (2) he was not the person responsible to file the corporate return; and (3) because of the forfeiture of this corporate charter, a return was not necessary.
Willfulness:
Much has been said concerning the distinction between “willfulness” as found in § 7203 (misdemeanor) and § 7201 (felony). Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); Edwards v. United States, 321 F.2d 324 (5th Cir. 1963), rev. en banc; Edwards v. United States, 334 F.2d 360 (5th Cir. 1964), cert. denied, 379 U.S. 1000, 85 S. Ct. 721, 13 L.Ed.2d 702 (1965).
The resulting concensus imposes upon the government the duty of providing substantial evidence that the failure to file a return was prompted by a bad purpose and without grounds for believing that the failure to file was lawful, as opposed to a careless, thoughtless or inadvertent oversight. The court instructed the jury that “willful” as used in § 7203 means:
“ * * * voluntary, purposeful, deliberate and with the specific intent to do that which the law forbids as distinguished from accidental, inadvertent or negligent.” and that
“ * * * the only bad purpose or evil motive which the government must prove in this case is the deliberate intention not to file a return which the defendant knew the law required him to file so that the government would not know the extent of the liability of the corporation.”
Several government witnesses and scores of stipulations established substantial receipts and disbursements of Stephens. Lumetta was deeply involved in all of these transactions and was astute enough in corporate affairs to be instrumental- in the management of other companies related to Stephens. It would be folly to even suggest that he was unaware Stephens was a going concern. Lumetta signed the return for 1958 and agreed to certain assessments for three prior years. Clearly, there is evidence from which the jury could conclude that Lumetta was aware of the law requiring him to file a return and that his failure to do so was “willful.”
Additionally, Lumetta argues that his failure to file returns for the years in question is mitigated by the fact that Stephens allegedly operated at a loss during these periods. Not only do we think the government produced considerable evidence indicating a net profit was in fact made, but prosecution for willful failure to file a return is imposed without regard to existence of a tax liability. Spies v. United States, supra.
Lumetta’s Responsibility:
Lumetta also alleges that he was not shown to be that “person” responsible for filing the corporate returns. The evidence produced by the government revealed that Lumetta had been president of Stephens from its inception until trial date and had signed the 1958 return and the assessment agreements for 1956,1957 and 1958, respectively. Lumetta acted for Stephens in filing the Federal Employer’s Quarterly return, the Missouri Employer’s Wage & Salary Report, and made application for reinstatement of the corporate charter in 1959 and 1962. From 1959 to trial date Lumetta was a major stockholder and was responsible for the daily affairs of running Stephens, There was also substantial evidence that other concerns conducted their business through Lumetta and considered him in control of Stephens. Clearly, there was enough evidence to raise the fact question for the jury that Lumetta was the “person” required by law to file a corporate return. Lumetta’s reliance upon United States v. Fago, 162 F.Supp. 125 (W.D.N.Y.1958) is misplaced. While we find no disagreement with the law as expressed in Fago, the facts and circumstances are clearly distinguishable from the case at bar.
Corporate Status:
Also, we think there is sufficient evidence to raise the question of whether Stephens possessed sufficient corporate characteristics to be taxable as such. Stephens existed as successor to Vitale Cement Contractors, Inc. until January, 1959, when its charter was forfeited for failure to file certain annual statements with the Missouri Secretary of State. However, Lumetta filed application to rescind the forfeiture order in March, 1959, and Stephens was restored to its old status until January of 1960 when the same incident again occurred. This time the corporate status was not restored until January of 1962. In this period during which the charter was forfeited, there were no changes in the method of conducting the day to day operations of the corporation. Stephens maintained its continuity of business activity, had stockholders and a Board of Directors, accepted liabilities and receivables in its corporate name and was operated for the purpose of making a profit.
26 U.S.C.A. § 7701(a) (3) defines “corporation” as including “associations, joint-stock companies, and insurance companies” and, while its status may possibly have changed under Missouri law, its tax status for federal purposes remains the same. Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 80 L.Ed. 263 (1935); Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 46 S.Ct. 48, 70 L.Ed. 183 (1925); Coast Carton Co. v. Commissioner, 149 F.2d 739 (9th Cir. 1945); Crocker v. Commissioner, 84 F.2d 64 (7th Cir. 1936).
Finally, Lumetta challenges the court’s Instructions Nos. XIII and XVII.
It is argued that Instruction Xm “ * * * allowed the jury to consider, as an offense, the failure to sign the returns.” There is no valid basis for this argument as the instruction does nothing more than tell the jury in the language of the statute the persons who shall sign corporate income tax returns. Lumetta was charged in the indictment with being required by law to make an income tax return on behalf of the corporation, and in order to convict, the jury had to find under other instructions of the court that he was a proper person required by law to file the corporate return. In order for the jury to intelligently perform its fact-finding function, it was proper and necessary for the court to instruct the jury as to the persons under law required to sign corporate returns. We know of no better way to instruct the jury than by the plain and simple language of the statute. It is proper practice to employ the language of a statute in an instruction when the statute is composed of clear and simple language. Compare Caldwell v. United States, 338 F.2d 385 (8th Cir. 1964); Williams v. United States, 328 F.2d 256 (8th Cir. 1964), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964).
As instruction No. XIII or a similar one was necessary, in view of other instructions, the utilization of such instruction was proper.
Lumetta’s attempt to invoke specific objection to Instruction No. XVII for the first time on appeal is specifically forbidden by Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Even though we are not required to rule upon the accuracy of this instruction in isolation, we have carefully examined it in light of the trial court’s charge as a whole. Franano v. United States, 310 F.2d 533 (8th Cir. 1962), cert. denied, 373 U.S. 940, 83 S.Ct. 1545, 10 L.Ed.2d 694 (1963); Johnson v. United States, 291 F.2d 150 (8th Cir. 1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Segal v United States, 246 F.2d 814 (8th Cir. 1957), cert. denied, 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192 (1957). We find that the comprehensive charge was without error and adequately and accurately guided the jury in the protection of Lumetta’s rights.
Finding no error, the judgment of conviction is affirmed.
. 26 U.S.C.A. § 7203
“Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.”
. The government mildly asserts that Lu-metta has waived any rights growing out of the denial of this motion as he offered and presented evidence in his own behalf. This would be a valid position had not Lumetta renewed his motion at the close of all the evidence. Gendron v. United States, 295 F.2d 897 (8th Cir. 1961); McDonough v. United States, 248 F.2d 725 (8th Cir. 1957).
. Although the trial court’s instruction in the case here does not present the issue, we would be hard pressed to exclude from the definition of “willful” “a careless disregard” to obey the law. See Judge Wisdom’s dissent in Haner v. United States, 315 F.2d 792, 795 (1963).
. 26 U.S.C.A. § 6062
“The return of a corporation -with respect to income shall he signed by the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized so to act. • # * ”
. Instruction No. XIII
“An income tax return required to be made by a corporation, shall be signed for the corporation by the president, vice-president, treasurer, assistant treasurer, chief accounting officer or any other officer duly authorized to sign such return.”
Instruction No. XVII
“As to Count One of the indictment, the Court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that during the fiscal year ending March 31, 1959, the defendant Stephen Lumetta was president of the Stephens Cement Contractors, Inc., a corporation not expressly exempt from tax; that said corporation had its principal place of business in the City of St. Louis, Missouri; that the defendant Stephen Lumetta was the person who had the responsibility and duty to file the Stephens Cement Contractors, Ine., income tax return with the District Director for the Internal Revenue District of St. Louis, Missouri, at St. Louis, Missouri, in the Eastern Division of the Eastern District of Missouri, on or before September 15, 1959, stating specifically the items of the corporation’s gross income and the deductions and credits allowed by law for the fiscal year ending March 31, 1959; and further, if you find and believe from the evidence beyond a reasonable doubt that the defendant Stephen Lumetta did willfully and knowingly fail to make such an income tax return on behalf of the Stephens Cement Contractors, Inc., to the said District Director of Internal Revenue or to any other proper officer of the United States, then you should find the defendant Stephen Lumetta guilty as charged in Count One of the indictment, and unless you so find, you shall find the defendant Stephen Lumetta not guilty.”
Identical instructions were given for the other two counts.
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_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.
RAYTHEON MFG. CO. v. RADIO CORPORATION OF AMERICA.
No. 2946.
Circuit Court of Appeals, First Circuit.
April 8, 1935.
Edward F. McClennen, of Boston, Mass. (E. Curtiss Mower, Jr., and Edward Williamson, both of Boston, Mass., on the brief), for appellant.
Richard C. Curtis, of Boston, Mass. (John L. Hall, of Boston, Mass., on the brief), for appellee.
Before WILSON and MORTON, Circuit Judges, and MORRIS, District Judge.
MORRIS, District Judge.
This is an appeal by the plaintiff, appellant, from what is termed a final decree in equity entered February 19, 1934, in the United States District Court of Massachusetts.
The action was brought December 14, 1931, by the plaintiff as an action at law. It is based upon the Anti-Trust Laws, US CA, title 15, c. 1, § 15 (Clayton Act § 4).
Triple damages are sought totaling $9,-000,000. The plaintiff’s declaration, as amended, contains two counts; one under the Sherman Anti-Trust Act (15 USCA § 1 et seq.), and the other under the Clayton Act (38 Stat. 730). The facts set forth are substantially the same in the two counts. The plaintiff alleges that in the year 1926, it was engaged in the manufacture, distribution, and sale in interstate commerce of tubes known as Raytheon rectifying tubes for use in radio receiving sets, and that it had built up a large and valuable good will in this interstate commerce business, and a large trade from which it realized in 1926 a net profit of $454,935, and that the defendant through manipulation and conspiracy with others has established a monopoly and totally destroyed plaintiff’s business.
The defendant, the present appellee, for answer, filed a general denial and set up a general release under seal alleged to have been executed on or about March 19, 1929. Plaintiff’s declaration referring to this alleged release says it was executed under legal duress. Defendant’s answer denies duress.
After some sparring between the parties involving a motion to strike, demurrer, a motion for specifications, and various amendments on one side and the other, the pleadings were finally perfected.
On October 10, 1932, the defendant filed a motion to transfer the case to equity for a preliminary hearing upon the validity of the release. The motion was based upon the following grounds: “1. In its answer the defendant has alleged that the plaintiff released the defendant from all claims. 2. The plaintiff has conceded in paragraphs 36 and 37 and counts 1 and 2 of its declaration that the plaintiff did execute such a release, but the plaintiff alleged that the said release was executed under duress. 3. The said release was under seal in that the plaintiff adopted the seal of the other parties who signed the release. 4. A release under seal cannot be avoided in an action at law. 5. Great delay and expense would be saved by preliminary hearing on this issue.”
On November 8, 1932, the defendant’s motion to transfer the case to equity was granted by the District Judge, and on November 9, 1932, plaintiff’s bill of exceptions to the order was filed and allowed.
On November 12, 1932, the plaintiff filed a motion for the framing of an issue to be tried by jury upon the issue of the validity of the release executed by the plaintiff. The motion was denied April 4, 1933.
On January 3, 1934, the plaintiff filed a motion on the law side of the docket that the order of November 8, 1932, transferring the case to equity be rescinded or be vacated or be superseded. In this motion the plaintiff disclaimed any right or remedy in equity to be relieved from the operation of the release, but claimed that a court of equity is without jurisdiction of these issues when presented in an action at law in which as to such duress neither party claims an equitable right or seeks an equitable remedy ; that the plaintiff has and claims a right to trial by jury on this issue which arises in an action at law.
The foregoing motion was denied February 2, 1934.
On February 12, 1934, the plaintiff filed the following motions for entry of final decree :
“The plaintiff insists on its obj ections to the jurisdiction of this court in equity and to the order of transfer thereto and without waiving said objections says as follows:
“1. The plaintiff hereby discontinues, becomes nonsuit and dismisses before any hearing in equity any and all allegations and claims that in equity the release alleged in the plaintiff’s declaration and in the defendant’s motion for transfer is invalid in equity more than at law and that the plaintiff has any equitable right to a decree declaring said release invalid or to any relief in equity.
“2. The plaintiff admits and avers that it has no right in equity or to any remedy therein and because, and that, it has a plain, adequate and complete remedy at law in that a court of law will not give force or effect to a release obtained in the manner alleged and having said unlawful effect il enforced.
“3. The plaintiff tenders in equity no evidence in support of any right to relief in equity and now has no such evidence and, therefore, before hearing, announces the conclusion of its evidence in equity in support of any such right in equity, to the same extent and with the same effect as if the court in equity should now have set this case for hearing of evidence against the plaintiff’s protest.
“4. This suit' in equity is now before hearing ripe for final disposition.
“Wherefore the plaintiff moves that a final decree be entered in equity No. 3767, (1) dismissing said suit in equity No. 3767 for the reasons aforesaid, or (2) terminating said suit in equity No. 3767 in such manner as, in this state of the record, equity requires and (3) thereupon returning the papers originally filed in law No. 5021 to the court of law.”
The above motion came on for hearing February 19, 1934. After hearing, the District Judge filed a rescript of his findings of fact and conclusions of law in which he set forth the various motions and rulings thereon, and in conclusion said: “Upon the issues submitted aforesaid to the Court sitting in equity, I, therefore, rule that the release is valid.”
A final decree was entered in accordance with the findings of the court, February 19, 1934.
No evidence was offered or introduced at any stage of the proceedings but the court examined a copy of the contract between the parties embodying the release.
Exceptions were taken, filed, and allowed to each of the foregoing orders.
Plaintiff’s petition for appeal is as follows :
“The plaintiff, aggrieved by the final decree entered in this case on Feb. 19, 1934, and by the proceedings on which the same is based, in the respects described in the assignment of errors herewithin, appeals to the Circuit Court of Appeals for the First Circuit from said final decree except so far as said decree transfers this case .back to law, and from said proceedings, and prays that this, its claim of appeal, may be allowed and that the transcript of the record proceedings, bills of exceptions and papers upon which the said decree was based, duly authenticated may be sent to said Circuit Court of Appeals.”
The order of the District Court upon plaintiff’s petition is as follows: “March 9, 1934. Bond approved and above appeal allowed not as a supersedeas.”
Plaintiff assigned the following alleged errors:
“First. In allowing on or about November 8, 1932, the defendant’s motion to transfer case to equity for a preliminary hearing upon the validity of the release given by the plaintiff.
“Second. In denying on or about April 4, 1933, the plaintiff’s motion for framing jury issues.
“Third. In denying on or about February 2, 1934, the plaintiff’s motion to rescind or to vacate or to supersede the aforesaid order of this court entered on or about November 8,1932, whereby the defendant’s motion to transfer to equity was allowed.
“Fourth. In adjudging affirmatively, without evidence and in equity, in its finding and in its final decree entered February 19, 1934, upon the plaintiff’s motion of February 12, 1934, but contrary thereto, that the release set forth in the defendant’s answer and elsewhere is both valid and binding and that the further proceedings at law shall be in accordance with this decree.”
No judgment of any kind has been entered in the action at law. It is pending for trial. D.uring the progress of the oral arguments a question was raised as to whether or not this court had jurisdiction to entertain the appeal. The defendant does not challenge the plaintiff’s right to appeal any of the orders and decrees in question. Both parties express the hope that, in the interests of directness and economy, this court will entertain it. We have every disposition to deal in a practical way with practical questions, but, as our jurisdiction is involved, we cannot pass the matter by without consideration. Consent of the parties is not sufficient. The right of appeal is strictly statutory. The provisions of the Judicial Code on which appeals ordinarily rest are sections 128 and 129 (28 USCA §§ 225, 227). Section 129 relates to appeals from interlocutory orders and decrees in proceedings for injunctions and receivers. Appeals are referred to in section 274b (28 USCA § 398), but there is nothing in its language expressly authorizing the right of appeal from an interlocutory order or decree. The question is whether the order of the District Court entered ’November 8th, transferring the case from law to equity, is appealable by reason of the provisions of section 129 when construed in conjunction with section 274b.
The latter section reads as follows:
“In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or-plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer or plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file a replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review; be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.”
The right of the defendant to file an equitable defense in the action at law is not questioned. Upon its being so filed, the District Court transferred the issues raised to the equity side of the docket for trial by the court. This was in a sense an interlocutory order. As to whether or not an appeal therefrom to this court would lie was at the time of the hearing a question upon which circuit courts of appeal had reached conflicting decisions. In the following cases jurisdiction was denied, Emlenton Refining Co. v. Chambers (C. C. A.) 14 F.(2d) 104; Weaver v. Atlas Oil Co. (C. C. A.) 39 F.(2d) 847; Cox v. Graves, Knight & Graves, Inc. (C. C. A.) 55 F.(2d) 217; while in the case of American Cyanamid Co. v. Wilson & Toomer Co. (C. C. A.) 62 F.(2d) 1018, jurisdiction was sustained.
The question has now been determined by the opinion of the Supreme Court in the case of Enelow v. New York Life Insurance Company, 293 U. S. 379, 55 S. Ct. 310, 311, 79 L. Ed. —, in an opinion handed down January 7, 1935. We quote from the language of Chief Justice Hughes as follows:
“It is thus apparent that when an order or decree is made under section 274b (28 USCA § 398), requiring, or refusing to require, that an equitable defense shall first be tried, the court, exercising what is essentially an equitable jurisdiction, in effect grants or refuses an injunction restraining proceedings at law precisely as if the court had acted upon a bill of complaint in a separate suit for the same purpose. Such a decree was made in the instant case, and therefore, although interlocutory, it was ap-pealable to the Circuit Court of Appeals under section 129, as amended (28 USCA § 227).”
This appears to settle the jurisdictional question, as it is quite clear from a reading of the plaintiff’s petition for appeal and its allowance by the District Court that the appeal was not only from what was termed a final decree, but from all orders on which it was based, and we now proceed to consider the merits of the controversy.
The several motions and rulings of the court present rather unusual and somewhat tangled questions involving distinctions between the jurisdiction of a court of law as distinguished from equity jurisprudence; distinctions that are by no means clearly marked.
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Such is the guarantee of the Seventh Amendment to the Federal Constitution. Const. (USCA, part 2, p. 581), Amend. 7.
Neither the Congress nor the courts can deprive a litigant of this right. It follows that if the plaintiff in this action is entitled to a trial by jury of the issues raised by the pleadings it must be held error on the part of the District Court to transfer the case from law to equity against plaintiff’s protest.
If error was committed in this first order, all the subsequent orders made by the court of equity must be extrajurisdictional.
If the order of transfer was right, no sound reason is presented why the subsequent orders should not be sustained and the final decree of the District Court affirmed. It may be conceded that if the defendant’s answer and plaintiff’s anticipatory replication set forth any ground for equitable relief, no error was committed by the order of transfer dated November 8, 1932; but no equitable relief is sought. The release was set up as a defense in the action at law. The order of transfer to equity cannot be sustained upon this ground.
It has been argued that a distinction should be made between a release obtained by fraudulent misrepresentations where the instrument is consciously executed knowing it to be a release and one obtained by trickery such that the signer has no knowledge of the contents of the paper he has signed. It is contended that the latter may be pleaded in bar of an action at law, but that the former can be set aside only in a court of equity. Cases may be found supporting this distinction. See Heck v. Missouri Pac. Ry. Co. (C. C.) 147 F. 775; Hill v. Northern Pacific Ry. Co. (C. C.) 104 F. 754; Vandervelden v. Chicago & N. W. Ry. Co. (C. C.) 61 F. 54.; Hoad v. New York Central R. R. Co. (D. C.) 6 F. Supp. 565. A long list of them may be found in the opinion of Lowell, J., in the case of Pringle v. Storrow (D. C.) 9 F.(2d) 464.
A very exhaustive discussion of the point may be found in the case of Wagner v. National Life Ins. Co. of Montpelier, Vt. (C. C. A.) 90 F. 395, and the court composed of Taft and Lurton, Circuit Judges, and Clark, District Judge, reached the conclusion that it is proper in a suit at law for the plaintiff to meet a plea of release by a replication that the release was obtained by fraud, whether the fraud is in the execution or in misrepresentation as to material facts inducing execution, where the issue involves simply a question of fraud between the parties. However, it is noted that the release in issue in that case was not under seal.
While it is true that fraud often furnishes ground for equitable relief, it more often creates an issue of fact peculiarly for a jury in actions at.law. There seems to be no logical reason for submitting to the jury issues of fraud in ordinary actions of contract and denying to submit the issue in an action involving a release which is no more than a form of contract. Carey v. McMillan (C. C. A.) 289 F. 380, 387.
The courts in this jurisdiction, in more recent cases, both federal and state, have made no such distinction, but when a question of fraud has been raised in a replication to a simple release, not under seal, pleaded in bar, the entire issue has been submitted to a jury in a single trial in a court of law. Phoenix Mut. L. Insurance Co. v. Bailey, 13 Wall. 616, 20 L. Ed. 501; Cable v. U. S. Life Ins. Co. 191 U. S. 288, 24 S. Ct. 74, 48 L. Ed. 188; Kansas City Southern Ry. Co. v. Martin (C. C. A.) 262 F. 241; Southern Ry. Co. v. Clark (C. C. A.) 233 F. 900; Columbia-Knickerbocker Trust Co. v. Abbott (C. C. A.) 247 F. 833; Plews v. Burrage (C. C. A.) 274 F. 881; Suravitz v. Pristasz (C. C. A.) 201 F. 335; American Sign Co. v. Electro-Lens Sign Co. (D. C.) 211 F. 196. The last-mentioned case contains an extended discussion of the point.
We hold that the plaintiff cannot be deprived of his right to a jury trial upon any such narrow grounds as what now appears to be a fast disappearing distinction between a release obtained by fraudulent misrepresentations and one obtained by fraud in its execution.
No reason is suggested why a release obtained by duress should receive more favorable consideration than one obtained by fraud. In fact, if it were a moral question the odds would be in favor of the latter. It has been held that the same principles- of law apply. Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St. Rep. 446.
The defendant’s plea alleges that the release is under seal, and it is argued that therefore it can be set aside only by a separate action in equity. If this is so, it follows that the order of- the District Court transferring the case from law to equity must be sustained.
An examination of the release discloses that there is no seal set opposite the signature of the plaintiff. Five signatures appear with only one seal which is set opposite the name of the General Electric Company. It is alleged in defendant’s motion to transfer the case to equity that “said release was under seal in that the plaintiff adopted the seal of the other parties who signed the release.” Whether the adoption of a seal affixed by another person is a question to be determined by extraneous evidence when there is nothing in the final wording of the . instrument indicating that the parties “have hereunto set their hand and seal” raises a rather delicate question, but one which we do not find it necessary to determine. See Hudson v. Webber, 104 Me. 429, 72 A. 184; Barnet v. Abbott, 53 Vt. 120; State v. Humbird, 54 Md. 327; Jacksonville, etc., Ry. v. Hooper, 160 U. S. 514-519, 16 S. Ct. 379, 40 L. Ed. 515. It is quite evident that the judge of the District Court treated the release as under seal. No question to the contrary appears to have been raised before him by plaintiff’s counsel. We do not think the question should be raised for the first time in this court. It well might have been considered that the plaintiff adopted the seal that was affixed to the release. C. F. Starita Co. v. Compagnie Havraise Peninsulaire (C. C. A.) 52 F.(2d) 58; Cammack v. J. B. Slattery & Bro., Inc., 241 N. Y. 39, 148 N. E. 781; Tasker v. Bartlett, 5 Cush. (Mass.), 359.
Treating the release as a document under seal, it does not necessarily follow that the plaintiff should be deprived of his right to a trial by jury when the nature of the present action is considered. Neither does it follow that an order transferring the case from law to equity against the protest of the plaintiff can be sustained when no affirmative equitable relief is sought.
We are cognizant of the fact that following the lead of the Supreme Court in Hartshorn v. Day, 19 How. 211, 15 L. Ed. 605 (1856), and George v. Tate, 102 U. S. 564, 26 L. Ed. 232 (1880), various lower federal courts have maintained a distinction between a simple contract not under seal and a specialty holding to the ancient doctrine that a sealed instrument can be set aside for fraud only in a court of equity. The Hart-shorn Case, because of its complications, was clearly a case for a court of equity. The George Case was tried before a jury, but evidence of fraud was ruled out/ and the ruling sustained by the Supreme Court. We find no suggestion that the procedure followed in that case was improper.
After citing the above-mentioned cases, defendant cites to the point, that a sealed instrument cannot be set aside except in equity, three cases in none of which a sealed instrument was involved. Union Pacific R. Co. v. Syas (C. C. A.) 246 F. 561; Caven-der v. Virginia Bridge & Iron Co. (D. C.) 257 F. 877; Penn. R. R. Co. v. Hammond (C. C. A.) 7 F.(2d) 1010. It is rather significant that the industry of counsel has failed to cite for our examination a single Supreme Court case reaffirming the principle laid down in George v. Tate, supra.
While 274b of the Judicial Code (28 US CA § 398) permits the filing of equitable defenses in an action at law, it does not change legal defenses into equitable defenses. Although defendant’s answer may be filed as an equitable defense, it does not follow that it is such. It must be considered as though the allegations of the answer and replication were set forth in an independent suit in equity. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232; People of Porto Rico v. Livingston (C. C. A.) 47 F.(2d) 712.
In view of the decisions above referred to, we are unable to agree that, in all cases in which no affirmative equitable relief is sought by either plaintiff or defendant, one who signs a release, does, by the mere act of affixing a seal thereto, necessarily convert a legal into an equitable defense, thereby depriving himself of his constitutional rights to a trial by jury if it later appears that the transaction was conceived in fraud or was the result of duress. Cases involving the reformation or rescission of written contracts which by reason of mistake fail to express the intention of the parties of which McIsaac v. McMurray, 77 N. H. 466, 93 A. 115, L. R. A. 1916B, 769, is an illustration should be carefully distinguished.
While it may not appear that the case of George v. Tate has been expressly overruled, it appears to have been questioned and sometimes disregarded. Am. Mills Co. v. Am. Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306; Manchester St. Ry. v. Barrett (C. C. A.) 265 F. 557; Plews v. Burrage, supra; Nat. Aniline & Chemical Co. v. Arnhold (D. C.) 298 F. 755.
Union Pacific Railway v. Harris, 158 U. S. 326, 15 S. Ct. 843, 39 L. Ed. 1003, has been cited by some of the lower federal courts as sustaining the case of George v. Tate, but we find nothing in it that indicates that such was the intention of the Supreme Court, and it seems rather significant that no mention of the George Case is found in the opinion, and that a large number of cases decided in various state Supreme Courts are referred to.
Assuming, but not determining as a matter of law, that the District Court correctly held that the release is under seal by adoption, and assuming that the distinction between fraudulent misrepresentations and fraud in the execution of a sealed instrument still exists according to the greater weight of authority, the former as an equitable defense, the latter as a defense at law, we are still of the opinion that the assumptions cannot avail the defendant in this action.
The plaintiff’s declarations set up as a cause of action a contract made in violation of the anti-trust laws; a contract which is declared by a statute to be illegal. Whether plaintiff can establish his claim is of no consequence in the determination of the present issue. Duress is a ground upon which the plaintiff seeks to avoid the consequences of his own act in entering into an illegal agreement.
Conceding that in ordinary cases an instrument executed under duress is voidable not void (Duignan v. U. S., 274 U. S. 195, 47 S. Ct. 566, 71 L. Ed. 996; J. M. Robinson & Co. v. Belt, 187 U. S. 41, 23 S. Ct. 16, 47 L. Ed. 65; Southern Cotton Oil Co. v. Shelton [C. C. A.] 220 F. 247), this cannot be so if the effect would be to give life and substance to an illegal contract.
In the case before us the release alleged to have been signed under duress enters into and forms an integral part of an agreement alleged to be illegal because establishing a monopoly in restraint of interstate trade. If the agreement is void the release is void, and requires no court of equity to so declare it. The primary issue is the validity or invalidity of the contract. A distinction is still made in cases following George v. Tate between instruments void and those voidable. A release obtained by trickery is treated in an action at law as if it were never made. It will admit of a replication or plea of non est factum. So, also, a releas.e, even though under seal, is void not voidable when, if given effect, it would result in affirming a contract declared illegal by statute. As a matter of pleading such a release, filed as an answer in a suit at law, will admit of a replication setting out that the release is void. The principle that invalidity of a sealed contract may be set up as a defense in an action at law is not of modern origin. It dates back to the time of Coke’s Reports. In Whelpdale’s Case, found in Coke’s Rep. vol. 3, p. 241, it is held that infancy and duress are defenses in an action at law under a plea of non est factum, while deeds void by act of Parliament require a special plea setting out the grounds of invalidity, and ending, “and so the said deed is void.”
In the case of Maine Northwestern Development Co. v. Northern Commercial Co. (D. C.) 213 F. 103, 106, it is held that fraud inducing the execution of a contract which is of such a nature as to render it against public policy or illegal is available as a defense in an action on a contract at law. Judge Neterer says; “It would indeed be a harsh system of jurisprudence that would lend any of its courts to the enforcement of contracts in violation of fiduciary relations. While the distinction between law and equity is studiously preserved in our federal system, that distinction does not go to the extent of compelling one court to enforce agreements which the other would abhor. Both are established to promote the well-being of society, and this may not be promoted by encouraging the violation of the most sacred duties known to the law.” See Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U. S. 227, 261, 29 S. Ct. 280, 53 L. Ed. 486.
It is impossible to harmonize the conflicting decisions of the District Courts or even those of the Circuit Courts of Appeal. Each seems to follow its own line of decisions.
We hold that the validity of the contract is the primary issue to be tried, and that it raises a mixed question of law and fact entitling the plaintiff to a trial-by jury. ' The order transferring the action at law to equity filed November 8, 1932, cannot be sustained.
Only one more question requires attention for a final disposition of the case, in so far as the issues now before us.
After the case had been transferred to equity, the plaintiff moved the court to frame ' issues to be submitted to a jury, and it may be suggested that he thereby waived his right of trial by jury in an action at law.
When a court of equity calls a jury it is only for the purpose'of enlightening its conscience and not to control its judgment. Basey v. Gallagher, 20 Wall. 670, 22 L. Ed. 452; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800.
Framing issues for a jury in actions in equity does not meet or secure the right to trial by jury as guaranteed by the Seventh Amendment. In the case of Cates v. Allen, 149 U. S. 451, 13 S. Ct. 883, 885, 977, 37 L. Ed. 804, Chief Justice Fuller uses the following language: “As the ascertainment of the complainants’ demand is by action at law, the fact that the chancery court has the power to summon a jury on occasion cannot be regarded as the equivalent of the right of trial by jury secured by the seventh amendment.” See, also, New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Company (C. C.) 190 F. 861, 869.
In view of the fact that the plaintiff immediately filed a bill of exceptions to the order of transfer which was allowed November 9,1932, and has consistently claimed throughout the course of proceedings in equity that it is entitled to a jury trial, we hold that it has not waived its right by its motion to frame issues to be tried by jury after the case was transferred to equity. See American Surety Company v. American Mills Co., supra; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 380, 14 S. Ct. 127, 37 L. Ed. 1113.
The several orders and decrees of the District Court are vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant to have costs in this court.
MORTON, Circuit Judge, concurs in the result. _ .
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. SMITH, James J. Marren, and Gerald T. Louison, Defendants-Appellants.
Nos. 91-2297, 91-2563 and 91-3143.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 29, 1992.
Decided May 3, 1993.
Rehearing and Suggestion for Rehearing En Banc Denied July 12, 1993.
Frederick J. Hess, U.S. Atty., Robert T. Coleman, Asst. U.S. Atty., Office of the U.S. Atty., Fairview Heights, IL, and Michael C. Carr, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Benton, IL, for the U.S.
Joseph Saint-Veltri (argued), Denver, CO, for Ronald J. Smith.
Lynn A. Hirschfeld (argued), Chicago, IL, for James J. Marren.
John Speroni (argued), Marion, IL, for Gerald T. Louison.
Before RIPPLE and KANNE, Circuit Judges,' and LEINENWEBER, District Judge.
The Honorable Harry D. Leinenweber, District Judge for the Northern District of Illinois, is sitting by designation.
KANNE, Circuit Judge.
This case requires us to revisit the Lanier/Kramer drug ring which has kept this court busy with numerous appeals over the past few years. For the sake of brevity, we will set forth only a general overview of the drug ring’s operations and relate specific facts pertinent to each defendant’s appeal as necessary.
Randy Lanier and Benjamin Kramer were partners in the marijuana importation business.' Initially, the two men imported small amounts of marijuana, about 15,000 pounds, on small boats. However, as time progressed, the men were responsible for importing barge loads of marijuana, each containing approximately 150,000 pounds. From 1982 to 1986, there were seven episodes of marijuana smuggling planned and executed by Lanier and Kramer.
As with any commercial product, Lanier and Kramer had to devise ways of marketing and' distributing the marijuana and secure people to help them implement these plans. To facilitate the distribution of such large amounts of marijuana, Lanier and Kramer utilized “major customers” in various cities throughout the United States. During the relevant time frame, Lanier and Kramer had three “major customers”: Ron Ball, Chris Holdorf, and the partnership of Jeff Tuch-band and David Tobias. Each of these customers, in turn, had primary customers of their own. After a shipment of marijuana arrived in this country, the three “major customers” were responsible for coming to the barge location, picking up their share of the marijuana and transporting it to stash houses in their area.
After extensive police work, the Lanier/Kramer organization was put out of business. A large number of individuals throughout the country were indicted as members of the Lanier/Kramer marijuana importation and distribution conspiracy. Several of these individuals were convicted, convictions we upheld on appeal. This case requires us to address three more convictions arising from the Lanier/Kramer conspiracy, those of James Marren, Ronald Smith and Gerald Louison. Unpersuaded by the defendants’ arguments, we affirm both their convictions and their sentences.
Procedural History
On September 29,1987, Marren was indicted, along with twenty other defendants, for conspiracy to distribute marijuana. The indictment alleged that the conspiracy ran from March 1980 through June 1987. Mar-ren proceeded to trial on November 15, 1988 with five codefendants. On November 29, 1988, after Marren’s counsel’s opening statement, the government moved to disqualify Marren’s attorney, Stephen Finta. Following' a hearing, the trial court concluded that Finta might have been involved in the drug conspiracy and disqualified him. That same day, the court declared a mistrial as to Mar-ren.
On March 2, 1989, Marren was charged with conspiracy in a superseding indictment. Marren filed a motion to dismiss based on double jeopardy, which was denied. On May 31, 1990, a grand jury .issued another superseding indictment charging Marren, Smith and Louison (and eleven others) with conspiracy to knowingly and intentionally distribute more than 1,000 pounds of marijuana from in or about January 1978 to June 1987 in violation of 21 U.S.C. §§ 841(a)(1) and 846.
A joint trial began on December 3, 1990. All three defendants repeatedly filed motions for severance which were denied... On January 10, 1991, all three defendants were convicted. On appeal, the defendants claim several errors require reversal of their convictions or, at least, resentencing. We address each in turn.
Variance/Sufficiency of the Evidence
According to the defendants, the government’s evidence at trial did not prove the existence of the single conspiracy alleged in the indictment, but rather proved, if anything, the existence of multiple conspiracies. The defendants claim that this alleged variance substantially prejudiced them. The challenge the defendants present is an all too familiar one for which we have several clearly established legal principles to guide our inquiry.
A conspiracy exists when two or moré individuals agree to join together to commit an illegal act. United States v. Curry, 977 F.2d 1042, 1053 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). “The crime of conspiracy focuses on agreements, not groups.” United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.1991). Thus, the government need prove only that the defendant knew of the agreement and intended to join it; the • government need not prove specifically with whom the defendant conspired or that he even knew the other conspirators. Id. Furthermore, a conspiracy conviction may be based solely on circumstantial evidence. Curry, 977 F.2d at 1053.
The defendants’ variance claim is really “a challenge to the sufficiency ■ of the evidence supporting the jury’s finding that each defendant was a' member of the same conspiracy.” Townsend, 924 F.2d at 1389. The difference between a single conspiracy and multiple conspiracies has been defined by this court. “If there is one overall agreement among various partners to perform different functions- in order to carry out the objectives of the conspiracy, the agreement constitutes a single conspiracy.” United States v. Gonzalez, 933 F.2d 417, 437 (7th Cir.1991). In contrast, if each of the conspirators’ agreements has its own end or is an end itself, then multiple conspiracies exist. United, States: v. Paiz, 905 F.2d 1014, .1020 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991).
The question of whether there is one conspiracy or several is a question of fact for the jury. Id. at 1019. Thus we will uphold a conviction if, when viewing the evidence in the light most favorable to the government, “a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment.” Townsend, 924 F.2d at 1389. This is so even if the evidence at trial was also consistent with a finding that multiple conspiracies existed. Id. In addition, the scope of our review does not permit us to reweigh the evidence or make independent witness credibility determinations. United States v. Maholias, 985 F.2d 869, 874 (7th Cir.1993).
The defendants contend the following: (1) Marren admits to distributing marijuana during the time mentioned in the indictment but claims that he conspired with others — not any members of the Lanier/Kramer group; (2) Smith admits to drug activity in conjunction with Tuchband and Tobias, but claims he failed to join in the “larger conspiracy”; and (3) Louison denies knowingly joining any drug conspiracy, maintaining that he was not aware that marijuana was present in the trucks he drove.
After reviewing the evidence in the light most favorable to the government, we conclude that sufficient evidence exists to convict each defendant of having joined a single conspiracy to distribute Lanier/Kramer marijuana.
James Marren
During the mid to late 1970s, James Mar-ren and Michael Canino were partners distributing marijuana in Philadelphia. The Marren/Canino partnership obtained marijuana from various sources. In 1976 or 1977, the two men began obtaining marijuana from Ron Ball, a “major customer” of his brother-in-law, Randy Lanier. At some point, Mar-ren moved to Florida to obtain marijuana more easily; Canino remained in Philadelphia to service their customers. Originally, Marren along with Ball and Jim Blair worked to supply Canino with marijuana. However, in 1980, Ball became convinced that Marren was creating too much exposure for the group by his open discussion of drug deals and by obtaining marijuana from other sources. As a result, a deal was struck whereby Ball could sell marijuana directly to Canino. From then on, Marren was no longer actively involved in the distribution of Lanier marijuana but received a cut of the profit each time Ball made a delivery to Canino. According to several trial witnesses, Marren received commission payments, primarily from Canino, on approximately 150,-000 pounds of marijuana over the next several years. Meanwhile, Marren also procured marijuana from other sources and supplied it to Canino.
Marren argues that this evidence proves only that he was involved in a separate and distinct conspiracy, presumably with Ball, Blair and Canino, prior to 1982. Marren does not dispute that a Lanier/Kramer drug conspiracy existed. Rather, he contends that the evidence did not show that he joined that conspiracy. We disagree. Marren introduced Ball, Lanier’s brother-in-law and “major customer,” to Canino to further the conspiracy’s goal of distributing Lanier/Kramer marijuana. See United States v. Percival, 756 F.2d 600, 607 (7th Cir.1985) (introduction of drug coconspirators can show intent to join conspiracy). In addition, numerous witnesses testified that once Marren ended his day-to-day participation, he still was aware of the Lanier/Kramer operation’s shipments and received $5 for each pound of Lanier/Kramer marijuana sold to Canino by Ball.
We believe that this circumstantial evidence was enough from which the jury could infer that Marren knew of the Lanier/Kramer conspiracy and intended to join it. See Townsend, 924 F.2d at 1390 (the key question is “whether the jury may reasonably infer a single agreement among the defendants from the evidence ... presented by the government”); United States v. Penson, 896 F.2d 1087, 1094 (7th Cir.1990) (government need only show that defendant knew purpose of conspiracy and intended to join it).
Marren also argues that “the government improperly alleged a single conspiracy in this case to take advantage of some of the procedural expediencies referred to by the Townsend Court.” Having already concluded that a single conspiracy was proven, we can only conclude that it was properly alleged. Mar-ren attributes further improprieties to the prosecutor which are not supported by the record and do not merit discussion here.
Ronald Smith
In 1983, Ron Smith, who owned tractor-trailer trucks, was hired by Tuchband and Tobias, Lanier’s “major customers,” to retrieve their share of Lanier/Kramer marijuana from a barge in New York and deliver it to their stash houses. Smith coordinated different truckers’ efforts and completed the task.
In 1984, 1985 and 1986, Smith again coordinated the unloading and truck delivery of barges, of Lanier/Kramer marijuana for Tuchband and Tobias. In addition, Smith also carried drug money back to members of the Lanier/Kramer organization. Smith was paid five to seven dollars for each pound of marijuana hauled — amounts totalling hundreds of thousands of dollars.
Smith concedes that this evidence is sufficient to show that he conspired with Tuch-band and Tobias to distribute marijuana, but argues that it is insufficient to prove that he knowingly joined the larger Lanier/Kramer conspiracy. Under Townsend and its progeny, Smith’s argument must fail. We have repeatedly held that a defendant is part of a conspiracy if mutual dependence or mutual support is shown. Townsend, 924 F.2d at 1392. Moreover, if a conspiracy has “a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy.” United States v. Mealy, 851 F.2d 890, 896 (7th Cir.1988).
We have no trouble concluding that the evidence demonstrated that Smith knowingly joined others, including but not limited to Tuchband and Tobias, in a single conspiracy to distribute Lanier/Kramer marijuana. From 1983 to 1986, every time a barge of Lanier marijuana arrived in this country, Smith played an active role in ensuring that it got from the port to the area where the “major customers” could distribute it. As mentioned, Lanier and Kramer’s “major customers” were responsible for picking up their share of marijuana when it arrived.' It is hard to conceive of a drug distribution set-up where mutual dependence and support is more apparent. Lanier and Kramer used their connections outside of the United States to obtain marijuana and relied on their “major customers” and their employees to transport it to the market.
Trial testimony revealed that Smith not only was responsible for the transportation of hundreds of thousands of pounds of Lanier/Kramer marijuana, but also acted as a money courier for the Lanier/Kramer group. It is apparent from the record that Smith knew not only whose marijuana he was trucking but also the amounts of marijuana involved. Smith was present at four major shipments and helped Lanier/Kramer representatives unload the barges of marijuana. “[I]f the evidence indicates that a defendant must have known that his actions were bene-fitting a larger conspiracy, he may be said to have joined the conspiracy.” Townsend, 924 F.2d at 1390. The jury had ample evidence to support its conclusion that Smith had knowingly joined a single conspiracy to distribute Lanier/Kramer marijuana.
Gerald Louison
In 1983, Tuchband and Tobias were concerned that they may need more than Ron Smith’s trucks to pick up their share of Lanier/Kramer marijuana. Upon a recommendation from a coconspirator, Eugene Walters, they hired Harley Surratt. Surratt, a trucker who had hauled marijuana in the past, and his brother-in-law, Gerald Louison, helped load boxes of lettuce onto other truckers’ tractor-trailers to cover the marijuana, but did not haul any marijuana because the extra trucks were ultimately not necessary. Sur-ratt was paid for making the trucks available to Tuchband and Tobias. Surratt and Loui-son were able to participate more actively in 1985 and 1986. In each of those years, Loui-son drove a truckload of marijuana from the barge site to a Lanier/Kramer stash house.
At trial and on appeal, Louison claims that he was unaware that he was hauling marijuana and thus he could not have knowingly joined any conspiracy to distribute marijuana, including the Lanier/Kramer conspiracy. We conclude the evidence supports a contrary view — the one the jury embraced when it convicted Louison. As mentioned, witnesses testified that Louison was present at the arrival of three shipments of Lanier/Kramer marijuana and ended up trucking over 65,000 pounds of it across the United States. More than one witness testified that Louison not only loaded trucks but participated in conversations with other marijuana truckers about how best to avoid agricultural road stops. In addition, the record reveals that Lanier/Kramer representatives were present at the barge sites and a representative generally accompanied each truck from the barge to the stash houses.
Almost identical testimony was presented against Surratt at his trial. Penson, 896 F.2d at 1093-94. In upholding Surratt’s conspiracy conviction, we concluded:
Surratt now asks this Court to believe that he could not recognize marijuana by sight or smell, and in addition that he found nothing unusual about covering an enormous load of unknown material with lettuce. Based on the evidence adduced at trial, it would have been irrational for the jury to have found that Surratt was ignorant of what was going on around him.
Id. We fail to see how the evidence presented against Louison is distinguishable. . Furthermore, once the jury concluded that Loui-son had knowingly transported Lanier/Kramer marijuana, it was permissible for it to conclude that he had joined the single conspiracy to distribute. . See Townsend, 924 F.2d at 1390 (jury is permitted to infer that á defendant joined a single conspiracy from circumstantial evidence produced at trial). Like Smith, Louison cannot claim he was unaware of the scope of the conspiracy. He participated in three barge shipments which contained well over the 1,000 pounds of marijuana alleged in the indictment. Thus, the evidence supports the jury’s finding that Louison knowingly joined the Lanier/Kramer conspiracy.
We hold that each defendant has failed to demonstrate that a variance existed between the conspiracy alleged in the indictment and the evidence presented at trial.
Multiple Conspiracy Instruction
At trial, the following multiple conspiracy instruction was given to the jury:
You may judge the defendants only on the charges alleged in the indictment. You may not convict them of any other alleged conspiracy in the event you should conclude that they have engaged in some other conspiracy. Therefore, if you are not convinced beyond a reasonable doubt that a particular defendant knowingly and intentionally joined the conspiracy alleged in the indictment, you must find the defendant not guilty.
Even if you find that a particular defendant knowingly and intentionally joined a conspiracy other than that alleged in the indictment, you should nevertheless, find that defendant guilty of the charge alleged in the indictment if'you are convinced beyond a reasonable doubt that the defendant knowingly and intentionally joined the single overall conspiracy that is alleged in the indictment and the elements of which are otherwise contained in these instructions.
The defendants argue that the district court' erred in giving this instruction for two reasons: • (1) the instruction prevented them from presenting their mtdtiple conspiracy theory to the jury; and (2) the instruction did not treat the issue fairly and accurately, but instead served only to confuse the jury.
When faced with a challenge to a jury instruction, we examine whether the instructions as a whole treated the issues in the ease fairly and accurately. United States v. McNeese, 901 F.2d 585, 607 (7th Cir.1990). As long as jury instructions treat issues fairly and adequately, we will not disturb them on appeal. United States v. Simone, 931 F.2d 1186, 1193 (7th Cir.1991). Further, we grant substantial discretion to the trial court concerning the specific wording of instructions. Penson, 896 F.2d at 1090.
Defendants are entitled to have their theories of defense presented to the jury, but are not entitled to the particular wording of their requested instructions. United States v. Boucher, 796 F.2d 972, 976 (7th Cir.1986). “[T]he [trial] court need not give a proposed instruction if the essential points are covered by those given.” Penson, 896 F.2d at 1090 (citing United States v. Xheka, 704 F.2d 974, 987 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983)). According to the defendants, the foregoing instruction did not present their multiple conspiracy theory of defense to the jury. This argument is without merit. Read as a whole, the instruction stresses that the defendants may only be convicted for the conspiracy described in the indictment. See Canino, 949 F.2d at 940-41 (using a plain error analysis, the court concluded that an identical instruction properly conveyed the defendants’ theory of defense); United States v. Lyons, 670 F.2d 77, 79 (7th Cir.) (identical instruction held, proper), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Edüd 1354 (1982).
Defendants also claim that the instruction confused the jury. At trial, the defendants did not object to the first paragraph of the foregoing instruction, which in fact was their proposed instruction on this issue. Rather, the defendants claim that the government insisted on adding the second paragraph in order to confuse the jury. We fail to see how the second paragraph could confuse the jury; it merely clarifies that although a defendant may have been a member of a different conspiracy, he may still be convicted if the jury finds he was also a member of the conspiracy for which he was indicted. This clarification may have been particularly helpful to the jury in this case, where the defendants were claiming to be members of different conspiracies. We repeat our conclusion in Canino: the “instruction was clear and in conformance with the law of this case.” 949 F.2d at 941. See also Lyons, 670 F.2d at 79 (concluding that the second paragraph appropriately reinforces the first paragraph).
Severance
The defendants argue that the trial court erred in denying their repeated motions for severance. We are unpersuaded. We begin with the presumption that coconspirators who are indicted together are appropriately tried together. United States v. Caliendo, 910 F.2d 429, 437 (7th Cir.1990). Moreover, because'the decision to grant severance' is soundly within the trial judge’s discretion, we will only reverse if the defendant shows “‘actual prejudice’ — that is, the defendant must show [ ]he could not possibly have a fair trial without a severance.” Id.
Actual prejudice may arise if there is a massive and complex amount of evidence that makes it almost impossible for the jury to separate evidence as to each defendant, or if there is a gross disparity of evidence between the defendants. United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985). The defendants seem to claim that both of these .situations existed in this case. More specifically, the defendants claim that they were prejudiced by a joint trial since the jury was bombarded with a large amount of evidence regarding the Lanier/Kramer conspiracy which was unrelated to them. Thus, the defendants conclude that they were convicted because evidence that would have been excluded in separate trials was presented during their joint trial.
Although it is true that the government presented a large amount of evidence regarding the Lanier/Kramer conspiracy during the trial, we do not believe that this deprived the defendants of a fair trial. Much of the government’s evidence was necessary to explain the operations of the Lanier/Kramer group and the defendants’ roles within the group, and much of it would have been permissible at separate trials. Moreover, the key question is whether the jury could follow limiting instructions and keep the evidence against each defendant separate. United States v. Peters, 791 F.2d 1270, 1302 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). The trial judge gave repeated limiting instructions throughout the trial as well as during the jury charge. We presume that the jury was capable of following the limiting instructions given throughout the trial and reached separate conclusions regarding each' defendant. See United States v. Briscoe, 896 F.2d 1476, 1517 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990).
The defendants have given us no reason to question the jury’s capacity; this ease is not that complicated and the disparity of evidence between defendants is minor. In Bris-coe, we held that a drug courier was properly tried with fourteen others in a heroin conspiracy case. Id. at 1483. In light of that holding, we cannot conclude that those responsible for trucking thousands of pounds of marijuana, Louison and Smith, cannot be jointly tried with one who collected profits on thousands of pounds of marijuana, Marren. Because the defendants have failed to show that they were actually prejudiced by a joint trial, we hold that the district court did not abuse its discretion in denying their severance motions.
Evidence Admitted Under Federal Rule mo>)
Both Marren and Louison argue that their convictions must be reversed because the trial court improperly admitted evidence of prior bad acts in violation of Fed.R.Evid. 404(b). Our review of the district court’s evidentiary rulings is limited to whether the trial court abused its discretion. United States v. Torres, 977 F.2d 321, 325 (7th Cir.1992); United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991).
We apply a four-part test and admit Rule 404(b) evidence if:
(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime chárged, (2) the evidence shows that the other act is similar énough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Penson, 896 F.2d at 1091. Applying this test to the evidence to which Louison and Marren object, we conclude that the trial court did not abuse its discretion by admitting prior conduct evidence.
Louison
At trial, Eugene Walters testified that Louison hauled a truckload of marijuana for him in 1982 from Louisiana to Colorado. Louison argues that this testimony does not meet any prong of our four-part, test. We disagree.
Throughout trial, Louison claimed he was unaware that he had hauled marijuana and thus lacked the specific intent needed to commit the crime of conspiracy. See United States v. Liefer, 778 F.2d 1236 (7th Cir.1985) (proof of conspiracy to distribute drugs requires a showing of specific intent); Fed. R.Evid. 404(b) (evidence of other wrongs or acts admissible to show proof of intent and knowledge). When a defendant is charged with a specific intent crime, the government may present other acts evidence to prove intent. Liefer, 778 F.2d at 1243 (court properly admitted evidence that defendant had “picked up” a previous load of marijuana in a case where the defendant denied ever possessing the marijuana alleged in the conspiracy charge). Therefore, because Walter’s testimony was used to establish Louison’s knowledge and intent to distribute marijuana and not his propensity to distribute, the first prong of our test is satisfied.
Walter’s testimony also meets the second requirement of the test in that the prior act is similar enough and close enough in time to be relevant to the matter at issue. In both instances, Louison was involved with Surratt in hauling tractor-trailer loads of marijuana. Moreover, only two years separated the prior act and the charged acts. See Kramer, 955 F.2d at 491 (prior act within two years of charged act satisfied 404(b)); United States v. O’Brien, 618 F.2d 1234, 1238 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980) (testimony concerning pri- or act two years earlier admissible under 404(b)).
As to the third prong, Louison strenuously argues that Walter’s testimony is insufficient evidence to support a jury finding that Loui-son hauled marijuana in 1982. Our previous comments on this prong of the test are instructive:
[this prong] is designed to prevent the jury from exposure to or consideration of evidence that establishes the defendant’s participation in the prior crime only by highly circumstantial inferences.
United States v. Chaimson, 760 F.2d 798,807 (7th Cir.1985) (decided when prong required clear and convincing evidence).
In Chaimson, we héld .that direct testimony of a defendant’s participation in the prior crime was sufficient to satisfy the now discarded clear and convincing test. Id. at 807-OS. Hence, under the current standard, we must conclude that uncorroborated direct testimony of an accomplice is sufficient to support a jury’s finding unless it is incredible on its face or otherwise insubstantial. See also United States v. Butler, 792 F.2d 1528 (11th Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986).
According to Louison, Walter’s testimony was incredible, in part because he did not identify Louison in his initial interview with the FBI and, in part because he was motivated to incriminate Louison in order to receive a more lenient punishment under his plea agreement: We disagree. Walter testified to events which quite possibly occurred and he could have physically observed; his testimony was not incredible as a matter of law. See United States v. Van Wyhe, 965 F.2d 528, 531 (7th Cir.1992). Walter’s motives for testifying and his allegedly faulty memory were topics on cross-examination which defense counsel thoroughly explored. We believe Walter’s testimony meets this prong.
The final element of the test is also met. Walter’s testimony was probative on the issue of whether Louison intended to distribute marijuana. “[T]he more probative the evidence, the more the court will tolerate some risk of prejudice....” Torres, 977 F.2d at 328. While the testimony created some risk of prejudice, this risk did not outweigh the testimony’s particularly probative value. In addition, any prejudice to Louison was not unfair and was limited by the following jury instruction given at the close of trial:
You have heard evidence of acts of each of the defendants other than those charged in the indictment. You may consider this evidence only on the question of that defendant’s knowledge and intent. This evidence is to be considered by you only for this limited purpose.
See United States v. Maholias, 985 F.2d at 879-80; Torres, 977 F.2d at 329.
Louison also complains that the court should not have admitted testimony regarding monetary transactions he conducted with Harley Surratt, Patricia Wilbur, and Norman Louison. The government presented this testimony in order to show that Louison had received a large amount of money for his illegal activities and had tried to conceal its source through a series of complicated transactions. Louison argues that this evidence does not meet Rule 404(b)’s requirements.
Federal Rule of Evidence 103(a)(1) requires that a timely specific objection be made to preserve an issue for review. United States v. Field, 875 F.2d 130, 134 (7th Cir.1989). At trial, Louison’s counsel objected to this evidence based on relevancy grounds, not 404(b) grounds. Because Louison did not properly raise a 404(b) objection at trial, he is precluded from raising this issue on appeal absent a showing of plain error. Id. We find no plain error here. Louison has failed to demonstrate that but for the admission of this transactional evidence he would have been acquitted. See id. at 135. There was ample evidence that Louison joined the conspiracy, absent this testimony. Consequently, we can only conclude that the jury still would have convicted Louison even if it were unaware that Louison actively tried to conceal his drug profit money.
Further, we hold that this evidence was admissible under Federal Rules of Evidence 401 and 402. Evidence is relevant if it tends to make any fact at issue more or less probable. Fed.R.Evid. 401. Because concealing the source of drug money goes hand and hand with a conspiracy to distribute marijuana, evidence of a defendant’s attempts to “launder” money is relevant, and thus admissible to prove the conspiracy. See United States v. Towers, 775 F.2d 184, 187 (7th Cir.1985).
We concluded the following in Towers:
[W]here a defendant is on trial for a crime in which pecuniary gain is the usual motive for or natural result of its perpetration and there is other evidence of his guilt, evidence of the sudden acquisition or expenditure of large sums of money by the defendant, at or after the time of the commission of the alleged offense, is admissible to demonstrate the defendant’s illegal obtention of those funds.
775 F.2d at 187-88 (emphasis added). Because the defendant’s objection to evidence of the monetary transactions goes to the issue of weight, not admissibility, we hold that the trial court did not abuse its discretion by admitting such evidence. See id. at 188.
Marren "
Marren contends that the trial court erred in permitting various witnesses to testify that- he was involved in importing and • attempting to distribute a “Jamaican load” of marijuana. Marren argues that the testimony fails to show either his intent or a common scheme because the evidence showed that he was an investor in the “Jamaican load,” whereas he was “solely a broker” in the charged conspiracy. This argument is without merit. The fact that Marren’s specific role in the two different conspiracies varied in no way detracts from the fact that the testimony showed that Marren intended to make money from trafficking in marijuana.
The second prong is satisfied because the bad acts, were not only identical, but the “Jamaican load” occurred in 1984 — during the time frame of the conspiracy alleged in the indictment. The third part of the test is satisfied in that several witnesses testified about Marren’s participation in the “Jamaican load.” As we concluded above, as long as direct testimony on the issue is not incredible, the third prong is met. See Chaimson, 760 F.2d at 807-08. None of the testimony presented was incredible or otherwise insubstantial.
Finally, we believe that the probative value of evidence concerning the “Jamaican load” was not outweighed by a danger of unfair prejudice. The “Jamaican load” testimony was probative on two key trial issues: the relationship between the coconspirators, and how the testifying witnesses were aware that Marren was receiving profit payments from Canino as well
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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songer_usc2sect
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423
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Michael MAROLF, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
No. 92-1381.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 13, 1992.
Decided Dec. 11, 1992.
John A. Bowman, Davenport, I A, argued, for plaintiff-appellant.
Janet Braggs, Kansas City, MO, argued (Gene W. Shepard and Christopher D. Ha-gen, Des Moines, IA, and Frank V. Smith, III, and Mary Day Purcell, Kansas City, MO, on the brief), for defendant-appellee.
Before RICHARD S. ARNOLD, Chief Judge, LOKEN, Circuit Judge, and ROSENBAUM, District Judge.
The HONORABLE JAMES M. ROSENBAUM, United States District Judge for the District of Minnesota, sitting by designation.
LOKEN, Circuit Judge.
Michael R. Marolf appeals the district court judgment affirming the decision of the Secretary of Health and Human Services to deny Social Security disability benefits. The issue is whether Marolf proved that he has a medically determinable seizure disorder. We affirm.
Marolf, a radio and computer repairman, filed his application for disability benefits in May 1988, claiming that he became disabled on November 1, 1987 (later amended to October 1, 1987), because persistent though minor blackouts and seizures had left him unable to drive a car or work on electronic equipment. At the administrative hearing, Marolf testified that he has no physical or mental impairments other than the blackouts. Marolf s wife testified that he has numerous, short-term blackouts and seizures while awake and asleep:
He has — well, what we call his blackouts where he goes totally out and does his jerking, or he has conscious blackouts where he’s awake and talking and he won’t remember what he’s done.
Marolf testified that he has no recollection of the blackouts but knows he has them from what his wife tells him.
Extensive medical study and treatment have failed to determine the cause of Ma-rolf’s condition. An initial electroencephalogram (EEG) showed a possible abnormality, and his treating physician placed Marolf on anti-seizure medication. When he complained of continuing seizures, Marolf was then extensively evaluated at the Mayo Clinic. The prior EEG was reviewed by a Mayo Clinic neurologist who determined that the observed data “do not represent potentially epileptogenic activity.” Prolonged EEG investigation, neurological evaluation, and an MRI scan at the Clinic proved normal. No sleep disorder was found, and Marolf’s medications were eliminated without causing problems. A Mayo Clinic physician concluded: “the current EEG confirms the clinical suspicion that the seizures are likely nonepileptic psychogenic or stress related seizures.”
After thoroughly reviewing this extensive medical evidence, the administrative law judge denied disability benefits because Marolf “has failed to show the existence of any medically determinable physical or mental impairment.” The ALJ explained:
This is not a case where the objective evidence does not support subjective complaints. It is one where, time and time again, the subjective complaints of blackouts have been refuted by the objective medical evidence and have been proved conclusively wrong. Moreover, investigation of a possible psychological etiology for the claimant’s “blackouts” has not disclosed the existence of a mental impairment_ [A treating physician’s] prescription of anti-convulsant medications [was] apparently based on the statements of the claimant and his wife and not on any objective findings. The ... initial [EEG] tests were reviewed by a team of specialists at the Mayo Clinic and, although these tests were considered minimally abnormal by local physicians, this team of specialists in Rochester found them to be completely within normal limits. The claimant has undergone video, sleep, awake, ambulatory, nighttime, and every other possible combination of testing, with no abnormalities recorded.
The Secretary’s Appeals Council denied review of the AU’s adverse determination, the district court affirmed the Secretary’s denial of benefits, and this appeal followed.
On appeal, Marolf argues that the AU improperly rejected the subjective testimony of Marolf and his wife as to the seizures and blackouts, citing our cases dealing with pain credibility findings, such as Penn v. Sullivan, 896 F.2d 313 (8th Cir.1990). However, in those cases, the claimants had medically determinable impairments; the question was the extent to which subjective complaints of pain would be used in determining the severity of those impairments and their impact on the claimants’ ability to work. Here, on the other hand, the question is whether Marolf has a medically determinable impairment.
The statute defines disability as the “inability to engage in any substantial gainful activity [for at least twelve months] by reason of any medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A). A medically determinable impairment is one “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); see also 20 C.F.R. § 404.-1527(a)(1). In 1984, Congress expressly provided that a claimant’s testimony cannot, by itself, satisfy this medical component of the statutory standard:
An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged....
42 U.S.C. § 423(d)(5)(A). Although this amendment expired of its own terms on January 1,1987, it was intended to codify a regulation that is still in effect. See 20 C.F.R. § 404.1529; Bates v. Sullivan, 894 F.2d 1059, 1071 (9th Cir.1990) (Wright & Wallace, JJ., concurring). Thus, proof of a disabling impairment must be supported by at least some objective medical evidence. See Moothart v. Bowen, 934 F.2d 114,116-17 (7th Cir.1991); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1214-16 (11th Cir.1991).
After careful review of the record, we conclude that substantial evidence supports the AU’s conclusion that Marolf failed to prove a medically determinable impairment. We have no doubt that epileptic seizures, both major and minor, can be medically determinable disabling impairments. See, e.g., Braswell v. Heckler, 733 F.2d 531, 532 (8th Cir.1984) (medically diagnosed “post operative brain surgery epilepsy”), and Bradley v. Bowen, 660 F.Supp. 276, 280 (W.D.Ark.1987) (physician witnesses linked “calcifications and lesions in the right hemisphere” of claimant’s brain to her seizures). Indeed, in carefully defined situations, such disorders are presumptively disabling “listed impairments.” See 20 C.F.R. Part 404, Subpart P, App’x 1, §§ 11.02, 11.03. Here, on the other hand, the AU found that extensive medical evidence — the “clinical and laboratory diagnostic techniques” mandated by statute — refutes the existence of the seizure impairment that Marolf and his wife described by symptom.
Because substantial evidence supports the AU’s finding that Marolf does not suffer from a medically determinable physical or mental impairment, the Secretary’s decision denying Social Security disability benefits must be affirmed.
. The HONORABLE HAROLD D. VIETOR, Chief Judge of the United States District Court for the Southern District of Iowa.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
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songer_circuit
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L
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ENVIRONMENTAL DEFENSE FUND, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents, Coahoma Chemical Company, Inc., Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus, Administrator, Respondents. COAHOMA CHEMICAL COMPANY et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent, EDF et al., Intervenors. OLIN CORPORATION, Petitioner, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. CAROLINA CHEMICALS, INC., et al., Petitioners, v. William D. RUCKELSHAUS, Administrator, Environmental Protection Agency, Respondent. W. R. GRACE & CO. et al., Petitioners, v. William D. RUCKELSHAUS, Environmental Protection Agency, Respondent. OCTAGON PROCESS, INC., Petitioner, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, Respondent.
Nos. 72-1548, 72-1690, 72-2142, 72-2183, 73-1015, 73-1088, 73-2070.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 5, 1973.
Decided Dec. 13, 1973.
John F. Dienelt, Washington, D. C., with whom William A. Butler, East Se-tauket, N. Y., was on the brief for petitioners in Nos. 72-1548 and 72-1690 and Environmental Defense Fund, Inc., and others, petitioners in No. 72-2142.
Robert L. Ackerly with whom Charles A. O’Connor, III, Washington, D. C., was on the brief for petitioners in Nos. 72-2142, 72-2183, 73-1015 and 73-2070.
Stephen F. Eilperin, Atty., Dept, of Justice with whom Walter H. Fleischer, Atty., Dept, of Justice and Blaine Field ing, Atty., Environmental Protection Agency, were on the brief for respondents. Alan S. Rosenthal, Atty., Dept, of Justice and Michael C. Farrar, Atty., Environmental Protection Agency also entered appearances for respondents.
Charles M. Crump, Memphis, Tenn., and Walkins C. Johnston, Montgomery, Ala., were on the brief for intervenors.
Before TAMM, ROBINSON and WILKEY, Circuit Judges.
WILKEY, Circuit Judge:
Coahoma Chemical Company, the Environmental Defense Fund, and other parties seek review of the 14 June 1972 Order of the Administrator of the Environmental Protection Agency (EPA) which cancelled, effective 31 December 1972, almost all registrations for the use of DDT, except for limited public health and- agricultural pest quarantine purposes. Coahoma, along with other producers and users, challenges the Order as going too far in banning most uses of DDT; the Environmental Defense Fund (EDF) challenges the Order as not going far enough by allowing a few uses to remain.
I. AGENCY ACTION
After a lengthy administrative review of DDT, a potent pesticide, the Order of 14 June 1972 was promulgated. The EDF first sought cancellation of DDT registrations under the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA] in October 1969. More than a year later, and after two cases challenging the lack of Government action had been brought in and decided by this court, on 15 January 1971 the Administrator of EPA issued cancellation notices for all registrations of insecticides containing DDT. However, no suspension of use was required at this time.
EPA began evidentiary hearings on DDT in August 1971. A month later an Advisory Committee, appointed at the request of the registrants' (i. e., users and producers) of DDT, issued a report confirming the hazards caused by DDT and recommending suspension or rapid decrease in use. In one of several preliminary judicial skirmishes between the parties, this court ordered EPA to reconsider its decision not to suspend use of DDT pending the outcome of the cancellation proceedings; reconsideration resulted in no change by EPA. We later in effect gave EPA a 15 April 1972 deadline before which to conduct meaningful administrative proceedings.
The EPA hearings terminated in March 1972, after seven months of testimony from a broad spectrum of the pub-lie, and in April the Hearing Examiner filed his Recommended Findings, Conclusions, and Orders. The Hearing Examiner concluded that all cancellation notices should be withdrawn, and registrations of DDT should continue, except for non-military mothproofing and DDD fruit spray.
The Administrator chose to review the case personally (instead of delegating this as he normally would to the Judicial Officer), and after oral argument and written briefs concluded on 14 June 1972 that DDT was sufficiently dangerous to require its use to be banned for most purposes. The Administrator delayed the effective date of his Order for six months, so that users of DDT could be educated in the proper use of alternative pesticides.
The statutory basis for the EPA action lies in the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. This Act requires registration of every economic poison distributed or sold in the United States. Registration is to be denied if the substance does not comply with the provisions of the Act, and misbranding of the substance is a prohibited action. Misbranding is defined in the statute to have occurred, “if in the case of an insecticide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or .vegetation, except weeds, to which it is applied, or to the person applying such economic poison. A later formulation of this requirement was incorporated in the Federal Environmental Pesticide Control Act of 1972, which requires denial of registration unless the substance “will perform its intended function without unreasonable adverse effects on the environment,” and unless “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” The FIFRA provisions further require that the order of the Administrator cancelling registrations must be based on substantial evidence of record developed at a hearing, if a public hearing is held, and the order must set forth detailed findings of fact.
The Administrator’s Order is • challenged on two grounds: (1) is it based on substantial evidence in the record; (2) does it comply with the requirements of the National Environmental Policy Act (NEPA) ? For the reasons explicated in Parts II and III below, to both questions our answer is affirmative.
II. JUDICIAL REVIEW OF THE ADMINISTRATOR’S ORDER
A. The Test
Explicitly established in the substantive legislation are the standards for judicial review. Once the Administrator has made a final order "concerning the registration of a pesticide, that order is appealable to the United States Court of Appeals. The FIFRA statute directs the Court of Appeals to sustain the find-. ings of the Administrator with respect to questions of fact if “supported by substantial evidence when considered on the record as a whole.” The 1972 amendments further elaborate the scope of judicial review:
The coui’t shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole
The two versions provide standards of review which are somewhat different, in that the court under the 1970 language need only support findings of fact by the Administrator if based on substantial evidence, but the 1972 language requires the court to support orders of the Administrator which are based on substantial evidence. The 1972 amendment was enacted and effective on 21 Octobei 1972, four months after the Administrator issued his Order in question here, but well before our judicial review. While the parties seem to assume that the 1970 version is controlling for purposes of our review, the 1972 statute has no provision denying application to judicial review of prior orders of the Administrator. We read the 1972 amendment as establishing a standard effective for judicial review commencing after 21 October 1972, and therefore applicable in the case at bar.
In any event, the provisions for judicial review under both the 1970 and 1972 language clearly require the court to determine whether the findings of fact of the Administrator are based upon substantial evidence when considered on the record as a whole. Thus we must apply a traditional type of substantial evidence test, albeit one based on an extraordinarily voluminous record. “Substantial evidence” was long ago defined by Chief Justice Hughes as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co v. NLRB. And since the statute requires the whole record to be considered as in Universal Camera Corp. v. NLRB:
The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. [This does not mean] that even as. to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even, though the court would justifiably have made a different choice had the matter been before it de novo.
The Supreme Court has more recently recognized in Consolo v. Federal Maritime Commission that there may be inconsistent conclusions which can be drawn from the same record, each of which may be supported by substantial evidence. Thus, “substantial evidence”
is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.
The Supreme Court went on to point out that the substantial evidence test “frees the reviewing courts of the time-consuming and difficult task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.” Other courts have stressed that where questions involve a special expertise of an agency, such as in detailed scientific proceedings, the agency deserves special deference from the courts, although careful review is of course always required
In the case at bar our task is made somewhat simpler than the agency’s by adhering conscientiously to the proper scope of judicial review of administrative action, i. e., we as a court are confronted with a problem in administrative law, not in chemistry, biology, medicine, or ecology. It is the administrative agency which has been called upon to hear and evaluate testimony in all scientific fields relevant to its ultimate question of permission or prohibition of the sale and use of DDT. The EPA Administrator had an opportunity to make a careful study of the record of seven months of public hearings and the summaries of evidence prepared for him, heard oral argument, and now has arrived at a decision to ban most uses of DDT. It is his decision which we must review; we are not to make the same decision ourselves. We are concerned with how he did it and on how much evidence. Since there is no challenge to procedure here, our problem narrows down to whether his decision is supported by substantial evidence based on the record as a whole.
B. The Evidence
A review of the evidence in this case, as summarized by all the briefs, indicates that the situation is as described in Consolo: there is a great mass of often inconsistent evidence which was developed at the hearing; this evidence is substantial enough to support the conclusions of the Administrator, although it possibly might support contrary conclusions as well. Considering the evidence in the record as a whole, we cannot say that the Administrator’s decision was not based on substantial evidence, even if the hazardous nature of DDT has not been proved beyond a reasonable doubt. Sufficient evidence has been adduced to show potentially great dangers from DDT, and the Administrator’s decision to cancel the DDT registrations is well within his statutory authority.
Specifically, the Administrator states that DDT is hazardous because of several of its inherent properties: its persistence, mobility, and lipid solubility. He contends that the alternatives to DDT do not have such properties, although he concedes that the alternatives may be more acutely toxic in the short run. He presents detailed evidence concerning the human hazards which may arise from DDT (carcinogenicity and muta-genicity of DDT), and also details the environmental hazards (effects on phytoplankton, beneficial agricultural insects, aquatic invertebrates, fish, and birds). He concludes that an unacceptable risk to man and his environment is posed by continued use of DDT, aside from the few carefully controlled uses concerning public health and agricultural quarantine purposes, which he permits.
These findings and the evidence on which they are based are vigorously challenged by Coahoma and other DDT users. While their evidence might be sufficient to have allowed the Administrator to have decided the other way, and permit DDT to continue, their evidence is not sufficient to vitiate the actual decision of the Administrator as not having been based on substantial evidence in the record as a whole.
Since the Administrator here decided contrary to the conclusions of the Hearing Examiner, the question arises concerning the proper deference to be given to the Hearing Examiner’s report. As the Supreme Court indicated in Universal Camera, the hearing examiner’s findings and opinion are to be considered as part of the evidence of record, both by the Administrator and by the reviewing court.
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. The “substantial evidence” standard is not modified in any way when the Board and its examiner disagree. 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 ease has drawn conclusions different from the Board’s than when he has reached the same conclusion. . . . The significance of his report, of course, depends largely on the importance of credibility in the particular case.
Later, in FCC v. Allentown Broadcasting Corp. the Court indicated that where responsibility for decision was placed on the Board, it would be inconsistent to require the Board to adopt an examiner’s findings unless rejection would be “clearly erroneous.” However, the Court did not elaborate on the proper standard to be applied. Subsequently in an opinion by Judge Tamm in Cinderella Career and Finishing Schools, Inc. v. FTC, this Circuit held that the agency or administrator deciding a case “must consider [the decision of the examiner] and the evidence in the record upon which it is based, rather than dismissing the proceedings at the hearing out of hand.”
Applying the law to the facts at hand, we conclude that the Administrator has given sufficient weight to the hearing examiner’s report. The Administrator reviewed the report of the examiner and the exceptions to the report filed by the EPA staff. He decided the case on the basis of the record developed at the hearings, additional briefs, oral argument, and specially prepared summaries. The case appears to be one where the demeanor of witnesses is not particularly important, and where the examiner himself had no particular expertise, for he was a coal mine accident specialist. The Administrator could derive a proper appreciation of the effect of cross-examination in the case by a reading of the record. Thus we conclude that sufficient weight was given to the examiner’s report.
In another aspect of the question of the substantiality of the evidence, Coa-homa, et al., urge that the Administrator’s findings are insufficient in that they are -based to a large extent on data which does not directly and specifically relate to the use of DDT to combat the boll weevil and the bollworm in the cotton growing areas of the Southeast. It is true that much of the evidence in the record concerning dangers of DDT does not specifically relate to this one area or to the use on cotton crops. However, it is not necessary to have evidence on such a specific use or area in order to be able to conclude on the basis of substantial evidence that the use of DDT in general is hazardous. The Administrator has pointed to evidence in the record showing that use of DDT except in minuscule amounts in highly controlled circumstances should be curtailed because of unreasonable risks to health and the environment. Reliance on general data, consideration of laboratory experiments on animals, etc., provide a sufficient basis to support the Administrator’s findings, even with regard to each special use of DDT.
On the other hand, EDF challenges the Administrator’s decision to allow use of DDT in controlling certain public health problems or in agricultural quarantines as not being based on substantial evidence. Specifically EDF contends that there is no need to retain these uses of DDT, and that the usual dangers of DDT are present in these particular uses. The Administrator finds that these uses may be necessary to combat potential, severe public health problems, and so DDT registrations for these purposes should be allowed. The necessity arises from the fact that alternative pesticides are also under EPA review, that situations may arise where the alternatives are not effective, and that DDT must be available. Because the allowance of continued registration does not mean continued use, except where certified to be necessary, the Administrator concludes that the benefits of continued registration outweigh the risks inherent in such a minuscule use. This view has support in the record as a whole, and thus satisfies the substantial evidence test.
The entire Order of the Administrator is supported by substantial evidence when the record as a whole is considered. Under a proper application of the substantial evidence test, as formulated by the Supreme Court and by this Circuit, we affirm the Administrator’s Order. We stress again that from an administrative law perspective we simply conclude that the Administrator’s Order is adequately supported by evidence in the record. We do not decide whether we, ourselves, would ban DDT, nor should we so decide. We have, however, carefully reviewed the decision of the Administrator, and conclude that it should be affirmed.
III. COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
The second challenge to the EPA’s action raised by petitioners Coahoma Chemical Co., et al., concerns the failure of EPA to file a specific report under the National Environmental Policy Act of 1969 (NEPA). That statute requires that
to the fullest extent possible . all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —(i) the environmental impact of the proposed action. . . .
This has been interpreted to require an agency to prepare an environmental impact statement whenever the agency’s proposed action will have a significant effect on the environment.
There is little doubt but that the action of EPA in withdrawing DDT registrations will have a substantial effect on the human environment — indeed, that was the very purpose of the EPA action. The court is asked to consider two other, somewhat interrelated questions concerning NEPA. First, is the EPA an agency subject to the requirements of the statute when it undertakes environmental actions such as the cancellation of DDT registrations here? Second, has EPA in effect complied with the requirements, despite the lack of a formal NEPA impact statement?
Petitioners Coahoma Chemical Co., et al., urge that EPA is not exempted from the NEPA requirements. They stress the statutory language requiring ALL agencies to comply, and note that there is no specific language in either NEPA or FIFRA which exempts EPA in this or any other set of circumstances. They note two District Court cases which indicate that all agencies, even the environmental ones, are covered by the NEPA requirements. Furthermore, they contrast the action of Congress in providing a specific exemption for EPA in the Federal Water Pollution Control Act Amendments of 1972, with the absence of a provision in the 1972 FIFRA amendments enacted three days later.
On the other hand, EPA contends that NEPA does not apply to the “environmentally protective regulatory activities of the Administrator conducted under the registration cancellation provision of the FIFRA.” Instead, EPA believes that the case is controlled by this Circuit’s decision in Portland Cement Ass’n v. Ruckelshaus. EPA limits its brief to the contention that NEPA does not apply to this type of action, although it states in footnote that perhaps NEPA is not applicable to any of EPA’s environmentally protective regulatory activities.
Portland Cement involved EPA’s promulgation of stationary source standards for cement plants pursuant to the Clean Air Act. The EPA action was challenged in part because the agency did not file a NEPA statement in conjunction with the promulgation of standards. Judge Leventhal noted that “there is a serious question whether NEPA is applicable to environmentally protective regulatory agencies. There is no express exemption in the language of the Act or Committee Reports.” We analyzed the pertinent legislative history, concluded that it was inconclusive, and then looked to the purpose and policies underlying NEPA. The goal of NEPA was of course to protect the environment, which it did through “a broadly applicable measure that only provides a first step.” In Portland Cement we thought that this goal might best be served by exempting certain activities from the formal requirements of filing NEPA reports. While we were not there willing to decide whether there was a broad exemption for all EPA environmental actions, we concluded that the actions taken in that case under the Clean Air Act were exempt from NEPA, because the Clean Air Act “requires the functional equivalent of a NEPA impact statement.” The Clean Air Act required the Administrator to supply a statement of reasons for his proposed standard, which statement should set forth the environmental considerations, both pro and con, and thus the Act seemed to “strike a workable balance between some of the advantages and disadvantages of full application of NEPA.” Furthermore, opportunity for public comment was provided, as was opportunity for court review.
The rationale we first developed in Portland Cement is applicable here as well,, and an exemption from the strict letter of the NEPA requirements is thus appropriate. The explicit language in FI FRA requires that pesticides be deregistered if they will be injurious to man and his environment. The substantive standard established by the statute places great emphasis on the quality of man’s environment. Additionally, the precedural standards provide full opportunity for thorough consideration of the environmental issues, and for ample judicial review. In this particular case, lengthy hearings- were held, during which public comment was solicited, and a wide scope of environmental aspects were considered. Thus the functional equivalent of a NEPA investigation was provided, for all of the five core NEPA issues were carefully considered: the environmental impact of the action, possible adverse environmental effects, possible' alternatives, the relationship between long- and. short-term uses and goals, and any irreversible commitments of resources — all received attention during the hearings and decision-making process. The law requires no more.
When it is clear that the NEPA objections are being raised by parties who have had ample opportunity to express their views, when there has been functional compliance, the Portland Cement rationale should certainly apply, and the agency action should be exempted from the strict letter of NEPA requirements. As we wrote recently, “To require a ‘statement,’ in addition to a decision setting forth the same considerations would be a legalism carried to the extreme.”
Our recent decision in Arizona Public Service Co. v. FPC, which requires an of agency to at least file a statement reasons as to why an impact statement is not necessary, is inapposite to the case at bar. In Arizona Public Service the Federal Power Commission did not look carefully at the environmental questions, but merely concluded in one sentence that there was no environmental impact. That is a far cry from the instant case,, where the whole focus of the agency action has been on the environmental aspects of the use of DDT. The reason for the failure to file a formal NEPA impact statement need not be explicitly stated here, for it is apparent on the face of the agency’s action.
We conclude that where an agency is engaged primarily in an examination of environmental questions, where substantive and procedural standards ensure full and adequate consideration of environmental issues, then formal compliance with NEPA is not necessary, but functional compliance is sufficient. We are not formulating a broad exemption from NEPA for all environmental agencies or even for all environmentally protective regulatory actions of such agencies. Instead, we delineate a narrow exemption from the literal requirements for those actions which are undertaken pursuant to sufficient safeguards so that the purpose and policies behind NEPA will necessarily be fulfilled. The EPA action here meets this standard, and hence this challenge to the EPA action is rejected.
IV. CONCLUSION
On review of the decision and Order of the EPA Administrator, we find it to be supported by substantial evidence based on the record as a whole. Furthermore, we find that EPA has provided the functional equivalent of a formal NEPA report. Therefore, the two challenges raised concerning the Administrator’s decision to cancel DDT registrations are rejected and the Administrator’s action is affirmed.
. Environmental Defense Fund (EDF) Appendix at 50.
. The chemical name for DDT is 1,1,1-tri-chloro-2,2-bis (pchlorophenyl) ethane. EDF Appendix at 105.
. 7 U.S.C. §§ 135-135k (1970). Originally FIFRA was enforced and administered by the Secretary of Agriculture. However, a reorganization in 1970 placed responsibility in the Administrator of EPA. gee Reorganization Plan No. 3 of 1970, in Appendix to Title 5, U.S.C.
. Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970) [The court granted EDF standing to contest the failure to cancel all DDT registrations and remanded to the Secretary of Agriculture to reconsider and give reasons.] ; Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971) [The court directed the Administrator of EPA, now in charge of FIFRA, to initiate cancellation proceedings because of substantial questions of safety of DDT, and to reconsider suspension of use.].
. EPA PR Notice 71-1. Also TDE, a related chemical, suffered cancelled registrations by PR Notice 71-5.
. FIFRA establishes an elaborate procedure for registrants who wish to challenge proposed cancellations. Registrants may request an advisory committee of scientific experts be selected by the National Academy of Sciences to review the proposed action. Additionally, registrants may file objections and request a public hearing. 7 U.S.C. § 135b (c). Both options were utilized here.
. Environmental Defense Fund v. Ruckel-shaus, Order (No. 71-1256, 22 Sept. 1971).
. Environmental Defense Fund v. Ruckel-shaus, Order (No. 71-1256, 9 Dec. 1971).
. The official title for the Hearing Examiner is now Administrative Law Judge. See 37 Fed.Reg. 16787 (1972); 5 C.F.R. § 930, Sub-part B (1973).
. EDF Appendix at 100.
. Examiner’s Proposed Orders, in EDF Appendix at 207-218.
. See Brief of Respondent, William D. Ruckelshaus, et al., at 21.
. See Brief of Petitioner, Environmental Defense Fund, et al., at 30.
. 7 U.S.C. § 135b(a) (1970).
. 7 U.S.C. § 135b (c).
. 7 U.S.C. § 135a(a) (5).
. 7 U.S.C. § 135(z) (2) (g).
. 7 U.S.C. § 136a(c) (5) (C) (Supp. II, 1972).
. 7 U.S.C. § 136a(c) (5) (D). The statute defines “unreasonable adverse effects” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” 7 U.S.C. § 136(bb).
. 7 U.S.C. § 135b (c) (1970).
. 7 U.S.C. § 135b (d) (1970).
. 7 U.S.C. § 136n(b) (Supp. II, 1972).
. Brief of Petitioner, Coahoma Chemical Co., at 15; Brief of Petitioner, EDF, at 32.
. During seven months of hearings, 125 witnesses appeared to testify and 365 exhibits were placed in evidence. The transcript of the hearings was over 9,000 pages long. Brief of Petitioner, Coahoma Chemical Co., at 5.
. 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).
. 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).
. 383 U.S. 607, 620, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966).
. IUd.
. See, e. g., Deutsch v. United States Atomic Energy Commn., 130 U.S.App.D.C. 339, 401 F.2d 404 (1968).
. The public disclosure of these summaries is sought under the Freedom of Information Act, 5 U.S.C. § 552 (1970), in a companion case, Montrose Chemical Corp. v. Ruckel-shaus, Nos. 73-1443 and 73-1444.
. See Brief of Respondent, Ruckelshaus, at 28-43.
. See id. at 43-85.
. See id. at 86.
. See id. at 106.
. 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951).
. 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955).
. 138 U.S.App.D.C. 152, 157, 425 F.2d 583, 588 (1970).
. See note 30, supra.
. Brief of Respondent, Ruckelshaus, at 16.
. It appears that most of the DDT now in use in the United States is for control of cotton pests, primarily the bollworm. In fact, at least 70% of all DDT is used in the cotton-growing areas, especially the Southeast. Brief of Respondent, Ruckelshaus, at 86. The Intervenors, National Cotton Council of America, et al., suggest in their Brief at 4 that cotton accounts for an even greater percentage of use. Their figure of 99% reflects the cancellation of registrations for a variety of uses in 1969-1971.
. See notes 32-34, supra. For the EPA’s argument directed towards cotton pests, see Brief of Respondent, Ruckelshaus, at 86-99.
. Brief of Petitioner, EDF, at 91-92.
. Brief of Respondent, Ruckelshaus, at 106-107.
. 42 U.S.C. § 4332(2) (C) (1970). The statement is required to include consideration of
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Id.
. The two cases noted by Coahoma are Kalur v. Resor, 335 F.Supp. 1 (D.D.C.1971) [re Corps of Engineers], and Anaconda v. Ruckelshaus, 352 F.Supp. 697 (D.Colo.1972) [re EPA]. The first of these cases was dismissed as moot by this Circuit. See Portland Cement Ass’n v. Ruckelshaus, 158 U.S.App.D.C. 308, 318 n. 41, 486 F.2d 375, 385 n. 41 (1973). The second case was observed by us in Portland Cement to have a “myopic” view. Ibid.
. 33 U.S.C. § 1371(c) (Supp. II, 1972).
. The FIFRA amendments are contained in the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. § 136 (Supp. II, 1972). A similar argument was put forth in the Portland Cement case, but was dismissed by the court there as providing a “hazardous basis for inferring the intent of the earlier Congress.” 158 U.S.App.D.C. at 315, 486 F.2d at 382, citing to United States v. Southwestern Cable Co., 392 U.S. 157, 170, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968).
. Supplemental Brief of Respondent Ruckel-shaus, at 2.
. 158 U.S.App.D.C. 308, 486 F.2d 375 (1973).
. Supplemental Brief of Respondent, Ruck-elshaus, at 2-3, n. 1. The EDF supports the limited stand of EPA. Supplemental Brief of Petitioner, EDF, at 13.
. 42 U.S.C. § 1857c-6 (1970).
. 158 U.S.App.D.C. at 314, 486 F.2d at 381.
. Id. at 316, 486 F.2d at 383.
. Id. at 317, 486 F.2d at 384.
. Id. at 319, 486 F.2d at ,386.
. See note 44, supra.
. As EPA points out, the NEPA objection was only first raised in the briefs to this court; in none of the earlier proceedings was any mention made of NEPA requirements. The raising of the objection so late in the proceedings makes the Coahoma position look more like a delaying tactic than a real -concern with the environment. However, our recent decision in Arizona Public Service Co. v. FPC, 157 U.S.App.D.C. 272, 280, 483 F.2d 1275, 1283 (1973), noted that “the tardiness of the parties cannot excuse an agency from complying with its responsibilities under NEPA.”
. Id. at 1280-1281.
. International Harvester Co. v. Ruckel-skaus, 155 U.S.App.D.C. 411, 446, 478 F.2d 615, 650 n. 130 (1973). The court in International Harvester noted that
the requirements of NEPA should be subject to a “construction of reasonableness.” Although we do not reach the question whether EPA is automatically and completely exempt from NEPA; we see little need in requiring a NEPA statement from an agency whose raison d’etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations so pertinent to Congress in designing the statutory framework.
Hid.
. 157 U.S.App.D.C. 272, 483 F.2d 1275 (1973).
. 483 F.2d at 1282.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Richard “Dick” ROBINSON, Petitioner, v. UNITED STATES of America, Respondent.
No. 83-1218.
United States Court of Appeals, Tenth Circuit.
Sept. 8, 1983.
John S. Adams of Gustin, Adams, Easting & Liapis, Salt Lake City, Utah, for petitioner.
James Michael Kelly, Associate Gen. Counsel, Raymond W. Fullerton, Asst. Gen. Counsel, and Aaron B. Kahn, Attorney, U.S. Dept, of Agriculture, Washington, D.C., for respondent.
Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
Richard “Dick” Robinson was charged by the Department of Agriculture with violating the Animal Welfare Act of 1970 (AWA) § 4, 7 U.S.C. § 2134, for transporting a wolf from Utah to California for exhibition on television without a license. Robinson exhibited the wolf on several television programs to promote his most recent book about his exploits as an animal trainer and producer of animal films. Respondent once held a valid exhibitor’s license under the AWA, but the license was revoked in 1979 when Robinson failed to comply with the terms of a consent decision requiring him to install more adequate plywood cover for his bear cages.
After a hearing, the Administrative Law Judge (ALJ) for the Department of Agriculture issued a cease and desist order to prevent Robinson from further illegally transporting and exhibiting his animals and assessed a $500 civil penalty against him. The Judicial Officer of the Department of Agriculture affirmed the order of the ALJ on appeal. Robinson’s petition for review in this Court raises two issues: First, did the AU improperly preclude Robinson’s affirmative defenses that the AWA is unconstitutional and that Robinson is not subject to the Act? Second, was the imposition of a $500 fine excessive and an abuse of discretion under the circumstances of this case?
I
Although Robinson claims on appeal that the ALJ effectively precluded him from attacking the constitutionality of the AWA and the applicability of the AWA to his activities, the record clearly indicates that Robinson in fact had numerous opportunities to present his defenses. Robinson bases his preclusion argument on a prehearing telephone conference between the ALJ, counsel for the Department of Agriculture, and Robinson, who at the time represented himself. During that conversation Robinson admitted transporting the wolf from Utah to California for exhibition on the television shows. With this admission in mind, at the conclusion of the telephone conference the ALJ issued an order entitled “Summary of Telephone Conference,” declaring that the only issue at trial “on which evidence will be taken will be what sanction, if any, should be imposed upon [Robinson].” Although Robinson thereafter filed other written motions, he made no objection or comments concerning the preclusion of his affirmative defenses until he was actually at the hearing. After some discussion at the beginning of the hearing, the ALJ clarified the situation when he stated,
“That [the affirmative defenses] won’t be a matter of evidence. That will be a matter of briefing and argument. You should feel free to submit briefs and argument on that. If you have any problems, if there is some problem about some evidence you think you should be entitled to bring forward, we will discuss it.”
R.II, 14.
Even if the ALJ had refused to admit Robinson’s evidence, he still could have made the evidence a part of the record through an offer of proof. See 7 C.F.R. § 1.141(g)(7). Further, the Judicial Officer could have decided all issues de novo under the Administrative Procedure Act, 5 U.S.C. § 557(b), when it reviewed the ALJ’s decision. See Containerfreight Transportation Co. v. ICC, 651 F.2d 668, 670 (9th Cir.1981). However, Robinson once again failed to present his constitutional arguments. Finally, even assuming that the ALJ refused to consider Robinson’s constitutional arguments, Robinson suffered no prejudice. The agency is an inappropriate forum for determining whether its governing statute is constitutional. See Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). While the agency may provide its views about the statute in relation to the nature of the industry Congress sought to regulate, the agency may not declare the statute unconstitutional. See Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160,1166, 39 L.Ed.2d 389 (1974); Engineers Public Service Co. v. SEC, 138 F.2d 936, 952-53 (D.C.Cir.1943), dismissed as moot, 332 U.S. 788, 68 S.Ct. 96, 92 L.Ed. 370 (1947). Therefore, no agency ruling on a constitutional challenge could have resulted in a dismissal of the action.
Robinson also claims that he was never given the opportunity to demonstrate that he was not subject to the AW A. However, not only did Robinson fail to request the opportunity to pursue this defense at the hearing, but afterwards in his proposed findings Robinson admitted that he was an “exhibitor who, without having obtained a license from the Secretary of Agriculture, transported in commerce, on or about October 13, 1982, from Utah to California, one wolf for exhibition on various television shows ... in violation of Section 4 of the Act (7 U.S.C. § 2134).” R. I, 52. Thus, the Judicial Officer hearing the appeal properly found that even if such a defense ever existed Robinson waived it upon submission of his proposed findings. See R. I, 87-88. Further, Robinson’s testimony at the September 15 hearing conclusively showed that he transported the wolf from Utah to California for exhibition on television shows in return for money and other things of value. Such activity undoubtedly subjects Robinson to the strictures of the AWA. See Haviland v. Butz, 543 F.2d 169,173-75 (D.C. Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 95, 50 L.Ed.2d 97 (1976); 7 U.S.C. §§ 2132, 2134; 9 C.F.R. §§ 1.1(n), (w).
II
Robinson asserts that the AU’s imposition of a $500 fine was excessive, unwarranted, and an abuse of discretion. However, in deciding the merits of such a claim we must be mindful that once the agency determines that a violation has been committed, the sanctions to be imposed are a matter of agency policy and discretion. In Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 1457-1458, 36 L.Ed.2d 142 (1973), the Supreme Court held that courts should restrict their
“review of the Secretary’s order according to the ‘fundamental principle ... that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy “the relation of remedy to policy is peculiarly a matter for administrative competence.” ’ American Power Co. v. SEC, 329 U.S. 90, 112 [67 S.Ct. 133,145, 91 L.Ed. 103] (1946). Thus, the Secretary’s choice of sanction ... [should not] be overturned unless the Court of Appeals ... [finds] it ‘unwarranted in law or ... without justification in fact ....’”
The AWA authorizes the assessment of a civil penalty in an amount of not more than $1,000. In setting the penalty, the ALJ is required to consider “the size of the business of the person involved, the gravity of the violation, the person’s good faith, and the history of previous violations.” 7 U.S.C. § 2149(b). The decision to order Robinson to cease and desist and to pay a $500 civil penalty was neither arbitrary nor capricious. Robinson testified that he had at least $50,000 invested in the physical facilities of his animal business, an amount that indicates a substantial operation. Although the ALJ found that since respondent’s activity did not harm or endanger the wolf the maximum penalty of $1,000 would not be appropriate, Robinson had specific knowledge of the Act’s requirements. Until approximately one year before the violations at issue, Robinson had been a licensee under the AWA. Robinson was in a position to know the requirements of the Act in spite of his testimony to the contrary. Robinson contends on appeal that since his testimony that he did not understand the requirements of the Act was the only evidence offered on this point at the hearing, the ALJ committed reversible error by finding that “the Act’s terms and provisions were not unknown to Robinson and his was not an inadvertent offense.” R. I, 58. However, even if the opposition offers no evidence on a particular issue it is still up to the trier of fact to assess the credibility of testimony on that issue and to decide whether that testimony is believable. McCormick, Evidence 794 (1972). “Credibility determinations, including assessments of demeanor, are to be made by the ALJ ... and will not be overturned by a reviewing court absent extraordinary circumstances.” NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982). No extraordinary circumstances appear to be present in this case, and this Court must respect the ALJ’s determination that Robinson’s self-serving testimony was not worthy of belief.
Taking into account all of these circumstances, the AU’s conclusion that a cease and desist order by itself was insufficient and that a $500 penalty was necessary to impress Robinson with the need to comply with the Act’s requirements in the future was not an abuse of discretion.
AFFIRMED.
. Approximately a week before the hearing Robinson did request a continuance so that he could more adequately prepare his defense. The ALJ refused to grant a continuance, which Robinson claims was an abuse of discretion. Under the circumstances of this case such a contention has no merit. Motions for continuance are addressed to the sound discretion of the trial court. Although there are limits on this discretion, the limits are not exacting and ordinarily the appellate court will not interfere with the district court’s exercise of discretion. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2352 (1971). See Fulton v. Coppco, Inc., 407 F.2d 611, 612-13 (10th Cir. 1969) (refusal to grant defendant’s motion for continuance on ground that he was unable to prepare his defense on a particular issue was not an abuse of discretion).
. It should be noted that although Robinson has never revealed the substance of his constitutional argument, the District of Columbia Circuit upheld the AWA against challenges on several constitutional grounds. Haviland v. Butz, 543 F.2d 169, 175-77 (D.C.Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 95, 50 L.Ed.2d 97 (1976).
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Michael Anthony DAVIS, Appellant, v. UNITED STATES of America, Appellee.
No. 24894.
United States Court of Appeals, Ninth Circuit.
April 21, 1970.
David M. Rothman, Los Angeles, Cal., for appellant.
Wm. J. Tomlinson, Darrell W. MacIntyre, Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.
Before HAMLEY, KOELSCH and KILKENNY, Circuit Judges.
PER CURIAM.
Appellant was indicted, tried and convicted in a jury trial of violating 18 U. S.C. § 914 and 18 U.S.C. § 1708. He appeals from his judgment of conviction on each count. We affirm.
Appellant assigns two errors:
I.
MIRANDA WARNING
Appellant received and signed a warning card, patterned to conform to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He complains of the language: “* * * anything you say can be used against you in court.”, and argues that the language should be: “* * * anything you say can and will be used against you in court.” This contention is patently without merit. Craft v. United States, 403 F.2d 360 (9th Cir. 1968).
II.
EYE-WITNESS IDENTIFICATION
While we do not condone the practice, followed in this case, of attempting to influence a witness’s recollection by displaying to her a photograph. of appellant immediately prior to testifying, we hold that the admission of the identification testimony on the record before us, did not, in any way, affect the substantial rights of the appellant.
The witness had an excellent chance to closely observe the person who committed the crimes and there is nothing in the record which even remotely suggests that her in court identification was in any way influenced by her view of the photograph. Additionally, appellant was identified by another witness whose testimony is wholly untainted. It is only when the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, that the verdict should be set aside. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Viewing the record as a whole, it cannot be said that such was here the case or that appellant was denied due process. Borchert v. United States, 405 F.2d 735, 737 (9th Cir. 1968).
An additional obstacle stands in appellant’s path to relief on this issue. No objection was made in the lower court. Consequently, the contention is not properly before us unless we find plain error under F.R.Crim.P., Rule 52(b). The plain error rule should be invoked only in exceptional cases, that is, situations where it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. Marshall v. United States, 409 F.2d 925 (9th Cir. 1969). We find nothing in this ease which would justify the employment of Rule 52(b).
. False impersonation of a holder of an obligation of the United States.
. Possession of stolen mail,
. Rule 52, F.R.Crim.P.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
PANNO v. UNITED STATES. EVANS BROS. PACKING CO. et al. v. UNITED STATES.
Nos. 13510, 13511.
United States Court of Appeals Ninth Circuit.
March 30, 1953.
G. V. Weikert, Los Angeles, Cal., for appellant, Carlo Panno, d/b/a Carlo Panno Fruit Co.
G. V. Weikert, Los Angeles, Cal., and Leonard J. Difani, Riverside, Cal., for appellants Evans Bros. Packing Co., Lloyd A. Evans, Roy E. Evans and Ernest E. Evans.
Charles B. Murray, Asst. Atty. Gen., Walter S. Binns, U. S. Attorney, John T. Grigsby, Los Angeles, Cal., Neil Brooks, Associate Solicitor, U. S. Department of Agriculture, Washington, D. C., for appellee.
Before ORR and POPE, Circuit Judges, and McCORMICK, District Judge.
POPE, Circuit Judge.
The appellants in each of these cases were found guilty under informations charging them with violation of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 601 et seq. The information charged that the defendants violated the Act by handling oranges without a prorate allotment and without reporting information respecting certain sales, as required by Order No. 66 which had been issued by the Secretary of Agriculture pursuant to the provisions of the Act.
The facts, which were stipulated, were that the “handling” consisted of sales of oranges both produced and sold in California. The Act authorizes the -Secretary to issue orders regulating the handling of certain commodities including oranges. Such regulation is to control “only such handling of such agricultural commodity, or product thereof, as is in the current of interstate or foreign commerce, or which directly burdens, obstructs, or affects interstate or foreign commerce in such commodity or prod uct thereof.” (Emphasis added.) The Act provides that the Secretary shall give notice and an opportunity to he heard upon such a proposed order and after such notice and hearing, if he finds that the issuance of the order and all of the terms and conditions thereof, will tend to effectuate the policy of the Act, he shall issue an order in conformity with the Act’s provisions. Among the appropriate provisions of such an order are those allotting the amount of any such commodity or product which each handler may market in the current of interstate or foreign commerce “or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof”. The Act provides criminal penalties for a handler who violates an order as Well as remedies by way of injunction and treble damages. Any handler subject to such an order may file a petition with the Secretary stating that the order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification of the order or for exemption therefrom. He is entitled to a hearing upon that petition and the ruling of,the Secretary thereon' may be reviewed in an appropriate district court. If a petition for review is filed with the Secretary and prosecuted in good faith, and not for delay, the criminal penalties shall not be imposed for violations between the filing of the petition and the date of notice of the Secretary’s ruling.
Order 66, here involved, was adopted pursuant to the provisions of the Act and was subsequently amended as the Act allows. The appellants were charged with violation of the provisions of the amended order which became effective November 1, 1949. This order, as amended, was promulgated after notice and the public hearing prescribed by the Act. It brought within its regulatory program all sales of California and Arizona qranges except the sale of oranges on the tree and the sale of oranges at retail, but including as to such California oranges, sales “within the State of California.” The order contained numerous findings as to why this regulation was made to apply to such sales of California and Arizona oranges within those respective States. The general import of these findings was that if sales of oranges interstate were regulated and sales of oranges within the state where produced were not regulated, the prices on the local sales would average lower than those received on interstate shipments; and the continued existence of these surplus, lower-priced oranges grown within the State and free from regulation therein would affect and depress the price returns upon oranges marketed in interstate channels, because of the disposition of purchasers to anticipate eventually being able to procure a portion of that surplus at reduced prices. It was found that the existence of a substantial quantity of unregulated oranges produced and sold in intrastate fresh fruit channels created “a psychological sales inertia in interstate fresh fruit channels”; that this directly “burdens, obstructs and affects interstate and foreign commerce in oranges.” The Secretary found that the regulation of the handling of all oranges grown in either of said states and wherever sold would result in more orderly marketing in both local and interstate markets, and that the result could be obtained through restriction on a uniform basis for both types of markets. It was concluded that the handling of all of such oranges should be subject to regulation. Accordingly, the order provided (§ 966.10) : “Except as provided herein, no person shall handle oranges during any week in which a regulation issued by the Secretary pursuant to § 966.6 is in effect, unless such person has an allotment, or unless such person is otherwise permitted to handle such oranges under the provisions hereof; and no person shall handle oranges except in conformity with the provisions hereof and the regulations issued hereunder.”
The stipulations upon which these cases were tried disclosed that the appellants were handlers of oranges within the meaning of this regulation and that they made sales without the prorate allotments required by Order 66. While it thus appears that the sales of oranges made by the appellants came squarely within the prohibitory terms of the order, appellants contend that they cannot be found guilty of a violation of the Act in the absence of proof by the Government that the particular sales specified in the information did themselves directly burden, obstruct or affect interstate or foreign commerce in such oranges. As put by the appellants their argument is: “That brings us right back to the appellants’ position, namely, that the appellee, having alleged that certain intrastate sales of California grown oranges made by appellants were in violation of Order No. 66, as amended, and therefore criminal, must prove, by competent evidence, beyond a reasonable doubt, that those sales did directly burden, obstruct, or affect interstate or foreign commerce in such oranges; otherwise, those sales were not subject to the Order; and that the blanket finding of the Secretary made when he amended the Order on June 29, 1949, is not competent evidence to prove that the intrastate sales in 1951 involved in these cases •directly burdened, obstructed, or affected interstate or foreign commerce.” (Emphasis of “those sales” is ours.)
Appellants expressly disclaim questioning the validity of Order No. 66 insofar as it regulates “such intrastate commerce in such oranges as directly burdens, obstructs, or affects interstate or foreign commerce therein.” Such a concession appellants must necessarily make for of course it was within the power of Congress to extend the regulatory scheme to intrastate commerce in oranges “which directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity”. United States v. Wrightwood Dairy Co., 315 U.S. 110, 121, 62 S.Ct. 523, 524, 86 L.Ed. 726; Wallace v. Hudson-Duncan & Co., 9 Cir., 98 F.2d 985, 993. The Secretary, in promulgating the amended order, conformed in all respects to the procedural requirements of the Act, and his findings, predicated upon evidence to the effect that the local sales of oranges do affect interstate or foreign commerce in that commodity, clearly make sense; they are not, as such, questioned here.
We are therefore at a considerable loss to understand why the appellants conceive that after the Government has proven that they have made sales which are prohibited by the express terms of the order, it must go further and prove “by competent evidence, beyond a reasonable doubt”, that those particular sales did directly burden, obstruct or affect interstate or foreign commerce in oranges.
Because of the technical t difficulties of the subject, Congress has chosen to delegate to the Secretary of Agriculture the task of completing the legislative regulatory scheme here set up.. Had Congress chosen to do so it- might itself have made the same findings which the Secretary here made and have enacted the provision for allotments ip respect to all sales of California .oranges both interstate and intrastate. Such an enactment would have been within the power of Congress because supported by the unquestioned facts relating to the effect of unregulated intrastate sales upon interstate sales-. Such ,an enactment would be valid notwithstanding it could be demonstrated that in exceptional instances or special cases particular sales of oranges within the state might be made without any demonstrable effect upon interstate commerce. It'seems to us to -be manifest that had Congress chosen to promulgate a complicated regulation of -this kind without bothering to delegate any'-part of the legislative process to the Secretary, the appellants would be in no position to require proof that the reasons for the congressional enactment applied with- full force to their particular acts. The appellants are in no different situation here; where the Secretary’s -order, in legal effect, expresses the Congressional will as fully as if Congress -itself had 'incorporated it into the Act.
For an additional reason the position taken by the appellants is untenable. As we have indicated' the Act makes full provision granting any handler in the position of these appellants an administrative remedy in case of any improper application to him of the Secretary’s order. In La Verne Co-op. Citrus Ass’n v. United States, 9 Cir., 143 F.2d 415, 418, a case in which the Government was enforcing by injunction the provisions of the same Act which we here consider, this Court held that the section of the Act setting up an administrative remedy, together with the other provisions of the Act “are consistent only with a construction that the methods outlined in the Act for determining the validity of orders is exclusive.”' -Thereafter, in nited States v. Ruzicka, 329 U.S. 287, 292, 67 S.Ct. 207, 210, 91 L.Ed. 290, an action to enforce certain other provisions of the same act, the Supreme Court said the same thing. It proceeded at considerable length, to explain how disruptive it would be to allow issues that may be canvassed first before the Secretary and second upon a review by the District -Court, to be tried later in enforcement -proceedings. All of the reasons there given for construing the administrative remedy to be the exclusive one apply with even more force here. If the problem of whether intrastate sales of California oranges affect, burden or obstruct interstate sales of oranges involves what the Supreme Court in the Ruzicka case called “questions of law arising out of, or entwined with, factors that call for understanding of the * * * industry”, it would frustrate all of the objectives of the Act if recalcitrant ham dlers could compel the government to cauvass such questions in respect to every sale in a prosecution such as we have here.
Appellants argue that since they do not question and have not questioned the validity of Order No. 66 insofar as it regulates generally such intrastate commerce in oranges as directly burdens, obstructs, or affects interstate commerce, that they were not called upon to employ the administrative remedy. The argument is untenable in any event but it is peculiarly inapposite in view of the express phraseology of the Section providing for the administrative remedy which permits the handler subject to such an order to petition the Secretary “to be exempted therefrom”.
The stipulated facts were therefore amply sufficient to sustain the convictions for handling oranges without prorate allotments, first because of the presumption of regularity which attaches to the official acts of the Secretary, Pasadena Research Laboratories v. United States, 9 Cir., 169 F.2d 375, 381, and second, because appellants’ failure to avail themselves of the administrative remedy precludes them from urging the points here presented. Persons so precluded, who have violated administrative orders, are subject to criminal sanctions. Yakus v. United States, 321 U.S. 414, 427, 64 S.Ct. 660, 88 L.Ed. 834; cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567.
In the Evans case, No. 13511, the court rendered separate judgments against Evans Brothers Packing Company, the partnership, and each of the three named partners. The partnership was adjudged guilty on all counts and in like manner each partner was adjudged guilty on all counts. The partnership was ordered to pay a fine of $50 on each of counts 1 to 15 inclusive and like judgment was rendered against each partner. The appellants assert that error was committed in thus imposing duplicate fines on the partnership and on each of the partners.
Since the fines imposed were in the minimum amount provided by the Act (§ 608c (14) provides for fines not less than $50 or more than $500 for each violation), it might be an interesting question whether appellants’ claim in this connection is substantially no more than a complaint as to the form of the judgment. As we understand appellants’ position upon this point, they could not find fault with a fine of $200 upon each of these 15 counts had it been imposed upon the partnership alone. The action of the judge discloses that in his opinion fines aggregating that amount should be paid on account of each of these 15 counts, and it is difficult to observe, so far as the amount of the fines is concerned, how the individual appellants are prejudiced by the form which the action of the court took. ,
But apart from that matter, and assuming that the appellants are in a position to urge the point, the Act, § 608c (14), provides for imposition of the penalty upon “Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order * * *” a key provision of the Act is found in § 608c(1) as follows: “The Secretary of Agriculture shall, subject to the provisions of this section, issue, and from time to time amend, orders applicable to processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof specified in subsection (2) of this section. Such persons are referred to in sections 601-608, 608a, 608b, 608c, 608d-612, 613, 614-619, 620, 623, and 624 of this title as ‘handlers.’ ” In § 608a (9) the term “person” so used is defined to include “an individual, partnership, corporation, association, and any other business unit”. We think that a fair construction of the Act would make the partnership as a business unit a “handler”. But nonetheless, each of these partners was, we think, likewise a handler within the meaning of the Act. This manner of imposing separate fines was appropriate and proper. Cf. Levin v. United States, 9 Cir., 5 F.2d 598; United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48; 18 U.S.C.A. § 2.
In the case of each individual defendant the judgment provided, following the imposition of the fine, that “in default of which he will stand committed to the custody of the Attorney General until such fine is paid or he is otherwise discharged by due course of law”. Contention is made that the court was without power to order the individual appellants committed until the fines were paid. The action of the trial court is authorized by Title 18 U.S.C.A. §. 3565. Cf. Hill v. United States ex rel. Wampler, 298 U.S. 460, 463, 56 S.Ct. 760, 80 L.Ed. 1283 (dealing with R.S. § 1041, from which this section was taken), and Boyd v. Archer, 9 Cir., 42 F.2d 43, 70 A.L.R. 1507.
In the Evans case, the court, adjudging each defendant guilty upon all 25 counts, imposed fines as above stated on each of the first 15 counts. Imposition of sentence was suspended on counts 16 to 25, both inclusive, and each defendant was placed on probation for a period of six months. These defendants assign error in that part of the judgment which placed them on probation, asserting that the error lies in the failure of the court to specify any terms of probation. This contention is without merit and these appellants are in no position to complain of the failure of the court to add further conditions to the probation.
Appellants’ final point relates to their conviction upon certain counts which charge them with failing to. make reports to the Orange Administrative Committee giving information as to the variety and size of certain oranges sold, as required by Order No. 66. In the Panno case, the first 20 counts, and in the Evans case, the first 23 counts, allege violation in making certain specified sales “without the prorate allotment required under the provisions of Order No. 66”. The sufficiency of the proof as to these we have heretofore discussed and considered. The stipulation shows these violations. But the last five counts in the Panno case, and counts 24 and 25 in the Evans case, merely relate to the failure to report information. Ap-pellees say that on such counts there was no evidence whatever to warrant a conviction.
We are of the opinion that this point is well taken, for the stipulation which alone constituted, the evidentiary basis for the court’s judgment contains nothing relative to a failure to report information.
Accordingly, both cases are remanded to the district court with directions to modify the judgments by eliminating therefrom adjudications of guilt in respect to counts 21 to 25 inclusive in No. 13510, and counts 24 and 25 in No. 13511. As so amended, the judgments in both cases are affirmed.
. 7 U.S.C.A. § 608c(1).
. § 608c(6) (C) describes such a provision as follows: “Allotting, or providing methods for allotting, the amount of any such commodity or product, or any grade, size, or quality thereof, which each handler may market in or transport to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, under a uniform rule based upon the amounts which each such handler has available for current ’shipment, o.r . upon the amounts shipped by each such handler in such prior period as the Secretary determines to be representative, or both, to the end that the total quantity of such commodity or product, or any grade, size, or quality thereof, to be marketed in or transported to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, during any specified period or periods shall be equitably apportioned ’ among all of the handlers thereof.”
. The order provided: “(j) ‘Handle’ means to buy, sell, consign, transport, ship (except as a common carrier of oranges owned by another person), or in any other way to place oranges in fresh form in the current of commerce between the State of California and any point outside thereof in the continental United States, Alaska, or Canada, or within the State of California, or between the State of Arizona and any point outside thereof in the continental United States, Alaska, or Canada, or within the State of Arizona. The term ‘handle’ does not include (1) the sale of oranges on the tree, (2) the transportation of oranges to a packing house for the purpose of having such oranges prepared for market, or (3) the sale of oranges at retail by a person in his capacity as such retailer.” (Emphasis added.)
. For example, if a legislative enactment requires all milk sold at retail to be pasteurized, a single producer may not escape the impact of the law by showing that his particular milk is handled with such care that the possibility of contamination which may justify the enactment generally has no application to his product and hence ,that his sales cannot violate the statute.
. The provision is as follows: Title 7 U.S.C.A. § 608c(15). “(A) Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be ex-, empted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in- accordance with regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the pray- ' er of such petition which shall be final, if in accordance with law. (B) The District Courts of the United States in any district in which such handler is an inhabitant, or has his principal place of business, are vested with jurisdiction in equity to review such ruling, * *
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:
|
sc_casesource
|
021
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
EVOLA v. UNITED STATES.
No. 194.
Decided October 21, 1963.
Maurice Edelbaum for petitioner in No. 194. Herbert S. Siegal for petitioner in No. 195. Edward Bennett Williams and Wilfred L. Davis for petitioner in No. 196. Wilfred L. Davis for petitioner in No. 197. Allen S. Stim for petitioners in No. 149, Misc. Robert S. Carlson for petitioner in No. 224, Misc. Petitioners pro se in Misc. Nos. 79, 80 and 115.
Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States.
Together with No. 195, Santora v. United States; No. 196, Genovese v. United States; No. 197, Gigante v. United States; No. 79, Misc., DiPalermo v. United States; No. 80, Misc., DiPalermo v. United States; No. 115, Misc., Mazzie v. United States; No. 149, Misc., Polizzano et al. v. United States, and No. 224, Misc., Barcellona v. United States, also on petitions for writs of certiorari to the same Court.
Per Curiam.
The petitions for writs of certiorari in Nos. 194, 195, 196 and 197, and the motions for leave to proceed in forma pauperis, as well as the petitions for certiorari in No. 79, Misc., No. 80, Misc., No. 115, Misc., No. 149, Misc., and No. 224, Misc., are granted.
The judgment of the Court of Appeals for the Second Circuit is vacated and the cases are remanded to that court for reconsideration in light of Campbell v. United States, 373 U. S. 487, and for such further consideration as may be appropriate.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_habeas
|
C
|
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.
UNITED STATES ex rel. EMANUEL v. JAEGER, U. S. Marshal.
No. 175.
Circuit Court of Appeals, Second Circuit
Feb. 10, 1941.
Max Shlivek, of New York City (Shlivek & Brin and Saul S. Brin, all of New York City, on the brief), for relator-appellant.
Nathan Weidenbaum, of New York City (Benjamin F. Steinberg, of New York City, on the brief), for respondent-appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The relator herein is the president and sole stockholder of Martin Clothes, Inc., which in the fall of 1937 filed a petition in the court below for reorganization under the then § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. Proceedings in connection with that reorganization and involving one Frank Raskin have now led to the judgment of commitment for contempt against the relator, from which he seeks relief on this writ of habeas corpus. Raskin was not originally, and seemingly never formally, a party to the reorganization proceedings; his interest arises, initially at least, by virtue of a written agreement made November 24, 1937, between him and the relator, whereby he agreed to furnish the necessary cash to consummate the reorganization. Relator’s commitment was occasioned by his failure to comply with an order of the bankruptcy court that he refund to Raskin the money advanced by the latter and pay certain expenses in connection therewith. He attacks this order as beyond the jurisdiction of the court in bankruptcy.
The agreement of November 24, 1937, provided that Raskin was to deposit $2,500 with the clerk of court to provide a 30 per cent cash payment to creditors as soon as a plan of reorganization to that effect should be accepted and confirmed; that relator’s stock, to be held in escrow until confirmation of the plan, should then be delivered to Raskin to hold until relator had reimbursed him, and thereafter to be returned to relator; and that until Raskin was paid, relator should work for the business at a fair and reasonable salary. After it was made, Raskin made the required deposit with the clerk, though only $1,500 was his own money, since $1,000 was supplied by relator’s father-in-law, Feldman. Thereafter the plan of reorganization was modified to substitute for the 30 per cent cash settlement with creditors a combined cash and note settlement of 20 and 10 per cent respectively, with notes of 5 per cent each of the debtor, endorsed by relator, relator’s wife, and Feldman, payable March 20 and April 20, 1938, respectively. The creditors accepted the amended plan and the court confirmed it on February 3, 1938. In its order of confirmation, the court directed the clerk to pay to the debtor the money theretofore deposited “for the purpose of debtor making distribution and payments to creditors under said Amended Plan of Reorganization and under this order.” Relator asserts, and it is not challenged, that debtor, upon receipt of the deposit, distributed it to the creditors as ordered, delivered the notes as required and paid them when they came due, and paid priority claims, as well as administration expenses, in full in accordance with the plan.
On February 15, 1938, Raskin applied to the district court for a resettlement of the confirmation order, on the grounds that he had not been served with a copy of the proposed order, and that the changes in the plan, described above, had been made without his consent. The court referred his application to a special master to hear and report. After extensive hearings the master reported, and the court on December 6, 1938, made an order, which went quite beyond a mere resettlement of the confirmation order. In this order the debtor was directed to pay to Raskin $1,500, representing the sum advanced by him, $125 representing an additional loan, and $115 for a copy of the stenographic record obtained for the special master, and to the special master, court reporters, and Raskin’s attorney fees in the amount of $1,302.50, or a total of $3,042.50. The quite inadequate record before us does not explain why this order was passed at a time when the creditors had apparently received the full 30 per cent payment for which Raskin had stipulated.
Thereafter Raskin moved for a resettlement of this order so that it might include a direction to require not only the debtor, but also the relator individually, to make the stated payments. Relator asserts that this step was taken only after an attempt to have him adjudged in- contempt for failure to make the payments had failed because the court held that the original order applied only to the debtor corporation. The new application was granted on April 17, 1939, in a resettled order wherein relator individually and the debtor corporation were severally and jointly directed to make the said payments, and were further directed to deliver to Raskin “the property, books, and papers of the Debtor herein.” A motion to punish them for contempt, originally returnable on July 12, 1939, eventually resulted in an order on September 26, 1939, which found them both in contempt, and provided that as punishment they “were jointly and severally fined the sum of $3,042.50,” relator, however, to be permitted to purge himself by paying the amount of the fine at the rate of not less than $40 a month. Relator made payments amounting to only $140. On August 10, 1940, the court passed its order directing the United States marshal to apprehend relator and to confine him in the Federal House of Detention until he paid the balance of his fine and the marshal’s expenses, or “until the further orders of this court.”
Between the entry of the contempt order and the commitment order there were further proceedings in the way of motions by relator for modification of the order, for reargument, and for the taking of testimony on the subject of the delivery of the books, records, and papers. These motions were all denied. Whether the books, records, and papers remained undelivered is not clear; the commitment order, while reciting the earlier order which included them, is in terms based upon relator’s failure to purge himself of contempt by paying his fine. Again on June 5, 1940, just after the court had ruled that it would order commitment unless the arrears were paid within two weeks, relator moved for a reargument of all the applications by Raskin and all the prior orders. This motion the court denied, as relator alleges, “in a memorandum decision, holding that he did have jurisdiction over the proceedings instituted by Frank Raskin.” No appeal was taken from any of these orders of the bankruptcy court. The petition for this writ came before another district judge, who expressed doubt as to the jurisdiction of the bankruptcy court over payments of money required by the agreement, but thought that the provision to turn over the stock and papers was sufficient to give the court jurisdiction over the whole subject matter.
From the brief record herein, limited in substance to the facts set forth in relator’s petition and an affidavit filed by Raskin in the earlier proceedings, somewhat supplemented by the recitals of the commitment order, we are left in the dark as to the legal basis for the orders of the bankruptcy court. It is unfortunate that an appeal involving personal liberty should be presented on so scanty a record. The facts before us indicate error in the action taken against the relator; our real problem is to determine whether or not this amounts to a jurisdictional defect open to collateral attack. We address ourselves first to the resettled order of April 17, 1939, for that is the first command directed against the relator personally.
We have not before us either the application for that order or the complete order itself. Since the question of jurisdiction had previously been raised, it would appear that the court passed upon it; at any rate it did so upon the application for reargument in 1940 and found in favor of its jurisdiction. Just the grounds upon which it went are not clear. The arguments and allegations of the parties seem to suggest one or both of two grounds: (1) enforcement of the original agreement with Raskin, and (2) identity of relator with the debtor corporation of which he was president and sole stockholder. We do not believe either ground singly^ or both together are adequate to support the order so far as it required relator to make refund of the loan to Raskin and to pay the expenses in connection therewith. There would be also requisite a finding that relator himself had had possession of the funds in question. The -finding said to have been made that the debtor corporation “was only a medium or a conduit used by” relator seems to be nothing more than a conclusion as to this form of legal and business device which in itself discloses nothing sinister. Corporations at best are only mediums or conduits whereby individuals carry on their affairs. And a violation of the agreement, so far as relator is concerned, is only a contractual breach on a matter collateral to the bankruptcy and hence not within its authority. Nixon v. Michaels, 8 Cir., 38 F.2d 420; In re Railroad Supply Co., 7 Cir., 78 F.2d 530; Smith v. Chase National Bank, 8 Cir., 84 F.2d 608.
*It is said that the plan of reorganization, while not referring to Raskin by name, did, however, recognize the obligation to him incurred by the debtor and his rights in the stock, the books, and the papers of debtor. That might well justify an order for a refund on non-consummation of the plan or for delivery of physical things, and the bankruptcy court surely retained jurisdiction under former § 77B, sub. a, to revoke its confirmation of the original plan twelve days after it had been had. True, it is not clear why the essential features of the agreed-upon plan had not been carried out, nor how the lender could get back both his money and the security for it; but that would appear to be at most error, not a defect of jurisdiction. And since it is natural to expect the president and sole stockholder of a corporation to be able to turn over its physical assets, an order as to them might go against thp president ; at least we held in Re Arctic Leather Garment Co., 2 Cir., 89 F.2d 871, that lack of finding of the officer’s possession of corporate bonds and his own stock was only formal and did not vitiate a turnover order. See also In re Byrd Coal Co., 2 Cir., 83 F.2d 190, 192.
But even if this part of the order is justified, it is not the part upon which the actual commitment was based; and in any event, where an order is partly within and partly without the court’s jurisdiction, the part without is void. In re Bonner, 151 U.S. 242, 257, 14 S.Ct. 323, 38 L. Ed. 149. The remainder of the order, as we view it, must assume that relator had possession of the deposit received from the court. That appears to be contrary to the statement that debtor received it and distributed it to the creditors, presumably long before this hearing, which came a year and a half after the original confirmation order. It involves in substance a holding that relator had taken trust funds in violation of the court’s order. If still open, we should certainly be loath so to hold on the basis of anything appearing in this record. True, Raskin does make charges that debtor’s store was closed, and all the merchandise and fixtures removed, while the hearings were proceeding before the master, and again that relator at some time misappropriated more than $1,100 over a period of six weeks after the trustee had been removed. These apparently unconnected allegations are tied together in respondent’s brief to show that they referred to the physical assets of the corporation and had no connection with the fund for the cash payment to creditors. We have already referred to the “conduit” theory; we see nothing else affording any justification for such a conclusion.
Nevertheless it appears on the authorities that, however harsh may be the result as to the relator herein, that issue is not open to collateral attack. What we have said indicates that in an appropriate case the bankruptcy court could have made the order in question. It is now well settled that on contempt proceedings no attack can lie made on the regularity, correctness, or validity of the original order. Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419, affirming In re Oriel, 2 Cir., 23 F.2d 409, 413; In re Siegler, 2 Cir., 31 F.2d 972; In re Arctic Leather Garment Co., supra; Id., 2 Cir., 106 F.2d 99; cases collected 3 Moore’s Collier on Bankruptcy, 14th Ed., 535-537. A like rule applies to habeas corpus proceedings; they cannot be used to review, as on appeal, the court action which has led to the commitment order. Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293, affirming Ex parte Craig, 2 Cir., 282 F. 138; Ex parte Kearney, 7 Wheat. 38, 20 U.S. 38, 5 L.Ed. 391; United States ex rel. Paleais v. Moore, 2 Cir., 294 F. 852.
Relator has appealed from neither the commitment nor the contempt order; he therefore can raise here the issue of jurisdiction only. Yet he had opportunity to and did raise that issue in the prior proceedings, and the court found against him. Even if we assume that the court was acting upon erroneous grounds as indicated above, yet Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, makes it clear that the matter is settled against collateral attack. There the issue whether or not the bankruptcy court could release a guarantor in reorganization from his guaranty was decided by the Court in favor of its jurisdiction. Yet the Supreme, Court holds that, even if that ruling be erroneous, and the matter without the power of a bankruptcy court (In re Diversey Bldg. Corp., 7 Cir., 86 F.2d 456; In re Nine North Church Street, Inc., 2 Cir., 82 F.2d 186), the issue cannot be raised collaterally. The situation seems the same as that here presented. Later decisions of the Court reiterate and reinforce this conclusion. Jackson v. Irving Trust Co., Jan. 6, 1941, 61 S.Ct. 326, 85 L.Ed. —; Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329; cf. 40 Col.L.Rev. 1006, 1008; 53 Harv.L. Rev. 652, 659; 49 Yale L.J. 959; and see also Ripperger v. A. C. Allyn & Co., 2 Cir., 113 F.2d 332, certiorari denied 61 S. Ct. 136, 85 L.Ed. -; Commercial Cable Staffs’ Ass’n v. Lehman, 2 Cir., 107 F.2d 917, 921.
Hence we conclude that the commitment order was authority, not subject to attack herein, for the marshal to hold the relator in his custody. The dismissal of this writ must therefore be affirmed. It would seem, however, that the relator is not wholly without remedy. The recitals herein indicate that the bankruptcy court retained jurisdiction' of all proceedings in connection with the reorganization after it had assumed to pass upon the plan. It may be that jurisdiction once more to resettle the original turnover order exists. Since, so far as the record shows, the issue of relator’s possession of the money. has never been tried out, as his various objections were apparently based on a misapprehension of his legal rights, it would seem appropriate for the court to reconsider that issue if it still retains jurisdiction so to do. In any event the original contempt order was of a continuing nature and the order of commitment was expressly made subject to further orders of the court. It would seem, therefore, that the bankruptcy court may properly be appealed to for action in the light of the considerations we have herein set forth. Present inability to perform has been considered an appropriate defense to a contempt proceeding. Oriel v. Russell, supra; In re Byrd Coal Co., 2 Cir., 83 F.2d 256; 3 Gerdes on Corporate Reorganizations § 1274; cf. United States ex rel. Paleais v. Moore, supra; In re Roxy Liquor Corp., 7 Cir., 107 F.2d 533. Under the circumstances it seems appropriate that no costs be taxed on this appeal, and we so direct.
Affirmed.
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:
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songer_respond1_1_4
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. 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.
WARK v. ERVIN PRESS CORPORATION.
No. 4492.
Circuit Court of Appeals, Seventh Circuit.
March 20, 1931.
Irving Breakstone, of Chicago, Ill., for appellant.
J. Robert Cohler and Samuel E. Hirsch, both of Chicago, Ill., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
In this ease bill and answer were filed, and, on motion of plaintiff for a decree pro eonfesso, decree was entered accordingly.
The bill charged that the plaintiff had established a business of creating, manufacturing, and selling an advertising service for those engaged in the business of dry cleaning; that plaintiff had customers and business in all parts of the country; that in December, 1927, appellant, Wark, entered plaintiff’s employ as a traveling sales manager at $85 a week, remaining in such capacity until March, 1929, when the employment ended; that after about six months he re-entered plaintiff’s employ as its special sales executive, under written agreement for service from September 1, 1929, to December 31, 1930, at $150 a week.
The sixth paragraph of the agreement (set out in the margin) provides, in substance, that if, with or without cause, the agreement shall terminate, Wark will not thereafter reveal any of the employer’s trade secrets, nor enter into nor be connected with any other business which sells or supplies advertising material for dry cleaners, and that he will not, for a period of five years from cessation of the employment, engage in the dry cleaning business or be employed in any capacity by any person or corporation engaged in the dry cleaning business, except in the states of New Mexico, Arizona, Montana, North and South Dakota, and Delaware.
The bill further charges that Wark, through his employment and contact with the trade, became acquainted with the plaintiff’s business methods and customers in various parts of the United States through personal calls upon the customers and through meeting them at conventions of the dry cleaning industry, and that on or about January 30, 1930, Wark left plaintiff’s employ, and in February entered the service of C. E. Falls Service Company, another corporation likewise engaged in creating and selling advertising service to dry cleaners; that Wark thereupon availed himself of his knowledge of plaintiff’s business and its business secrets, and of plaintiff’s lists of customers and prospective customers, employing all this knowledge for the benefit of his new employer, and soliciting plaintiff’s customers by personal calls and by correspondence, whereby plaintiff has been and will be greatly damaged; and that such conduct was contrary to Wark’s undertaking in and by 'said agreement.
The bill asks for temporary and permanent injunction restraining Wark from disclosing any of the business methods or secrets of plaintiff, from remaining in the service of his new employer, or from being connected with any such business'for such period of five years in the territory above specified, and from using, or enabling others to use, lists of plaintiff’s customers or prospective customers.
A temporary injunction was granted restraining Wark from disclosing to his then employer, or to any other person, any of the secret business methods or other secrets of the plaintiff, and from soliciting customers or prospective customers of plaintiff whose names were obtained or made known to said Wark while in plaintiff’s employ, and from in any manner using names or lists of names of customers or prospective customers of plaintiff obtained by him while in plaintiff’s employ.
Answer to the bill was filed, in which it was admitted that plaintiff was engaged in the business described in the bill, and that’ plaintiff solicits practically all the leading dry cleaning establishments in the United States. The answer admits the execution of the written agreement, but denies that plaintiff disclosed to Wark any trade or business secrets and lists of customers and prospective customers, but stated that Wark made his own contacts and solicited those engaged in the dry cleaning business wholly from names obtained from trade journals and financial reports. It denies that plaintiff possessed any trade secrets or secret methods of doing business, but stated that its method of designing and producing its products was well known to all those engaged in similar business.
The answer further states that on January 30, 1930, Wark was discharged by plaintiff without cause, and that thereby he was relieved from the obligations of the contract; that he thereafter entered into the service of his then employer as sales manager, and that said employer was and is a competitor of plaintiff and likewise engaged in selling advertising service to dry cleaners, but that its service is in a far broader field, and is not confined exclusively to dry cleaners, as is that of plaintiff; that approximately only half of said employer’s business is devoted to the dry cleaning trade; that Wark does not in any manner participate in designing the advertising service of his employer, nor ip creating and manufacturing it; that said employer solicits the entire dry cleaning trade from its own catalogs and lists of customers, which are compiled as the result of its own efforts, and entirely independent of plaintiff or of any compilation on'the subject by the plaintiff; that said employer was familiar with the entire advertising service and business methods and distribution to the trade of such product long before the time of plaintiff’s employment of Wark; that Wark’s services to plaintiff were not extraordinary or unique; that he has not, since employed by said employer, made use of any trade secrets or methods of plaintiff, or solicited any of plaintiff’s former customers or prospective customers; and that he has not circularized any lists of customers or prospective customers of the plaintiff, or personally solicited any of them. But the answer admits that Wark has sent announcements to personal friends in the trade, advising them of his new connection and employment.
The answer further alleges that Wark’s duties with plaintiff were such that they could be satisfactorily performed, and are being performed, by others, without any difficulty to plaintiff in engaging a successor equally capable, and denies that plaintiff has suffered any damage as a result of Wark’s change in employer. The answer further alleges that paragraph 6 of the agreement is unilateral, unreasonable, unconscionable, and lacking in mutuality, both as to obligation and remedy, and therefore void.
The final decree made permanent the preliminary injunction, and further restrained the defendant, for five years from January 20, 1930, from being associated or employed by or from participating in the business of his then employer, and from being connected with, or entering or engaging in, within the United States, except the above named six states, any business of selling or "supplying •advertising or display service in any form to dry cleaners, and from being engaged or employed in any capacity by any association of dry cleaners. -
Coneededly the plaintiff was not entitled to any relief concerning any allegations of the bill which were sufficiently denied by the answer. The answer sufficiently denied that the plaintiff in its business possessed any trade secrets or secret methods of doing business, and that Wark had imparted to the Falls Service Company any secret information of plaintiff’s business, or had given that employer any list of plaintiff’s customers or information respecting plaintiff’s business, and denied that plaintiff sustained any damage by reason of any of defendant’s alleged acts or doings.
The preliminary injunction was limited to restraining defendant from disclosing to his new employer, or any other person in the dry-cleaning industry, plaintiff’s business secrets and secret business methods, and from soliciting customers or prospective customers of plaintiff whose names became known to defendant while in plaintiff’s employ. Since the answer sufficiently denies that plaintiff had any trade secrets or secret methods of transacting its business whereof Wark became possessed, so much of the final decree •as makes permanent that part of the preliminary injunction against making such revelations is unwarranted, and, to that extent, the final decree should in any event be modified.
The answer, while denying generally the solicitation of plaintiff’s customers, does not specifically deny the writing of letters, one of which the bill sets forth, or the allegation that other letters of similar nature were written by Wark to customers of the plaintiff, with whom Wark had, while in plaintiff’s employ, come in business contact. The letter which the bill sets forth plainly indicates direct solicitation of this customer of plaintiff for the new employer. As to the writing of such letters, the answer admits that Wark sent announcements to personal friends of the trade, advising them of his new connection. It does not deny that such personal friends in the trade were also plaintiff’s customers in the dry cleaning business as alleged, nor that the letters were, to all intents and purposes, a bid for business relations on behalf of the new employer. The answer also admits that the new employer was engaged in the business of supplying advertising matter for dry cleaners, although alleging it was advertising of a different kind. Nevertheless in its relation to dry cleaners it was in direct competition with plaintiff’s advertising business.
To the extent, therefore, that the answer admits, or does not deny, material allegations of the bill, so much of the decree as is predicated upon the allegations so admitted, or not denied, must stand, if the matters are such as, if proved, would entitle plaintiff to the decree.
The answer alleges that there was nothing extraordinary or unique about Wark’s services, and that he could be replaced without injury to his former employer, and that therefore the negative or restraining covenants of paragraph 6 of the contract are not enforceable. The trend of modem authorities is that such covenants, when reasonably limited as to time and place, and when reasonably calculated to protect the lawful business of the employer, will be enforced, even though the service is not of that unique and special nature as has often been the subject of judicial consideration. Erikson v. Hawley, 56 App. D. C. 268,12 F.(2d) 491; Eureka Laundry Co. v. Long, 146 Wis. 205,131 N. W. 412, 35 L. R. A. (N. S.) 119; Walker Coal & Ice Co. v. Westerman, 263 Mass. 235, 160 N. E. 801; 32 C. J. 220.
The circumstances here presented tend to indicate that Wark was considered by plaintiff to be, and he was in fact, a particularly useful and valuable employee. His experience with such business began with his first employment by plaintiff. His salary was comparatively large, but for some reason the employment ceased after somewhat over a year, and then the new contract was made at an initial salary nearly double what it had been.
The mere statement of the fact would indicate that in the course of such employment the good will of plaintiff’s business was, in considerable degree, in the hands of this employee, and it was to protect the good will of the business that paragraph 6 was made a part of the agreement.
It is true that the territorial limit of his restriction is large — all of the United States save six of the less important states — but plaintiff’s trade, as well as that of the competitor, extended all over the United States, and so presumably did the business contacts of Wark, made during his employment with plaintiff. Under the circumstances, we cannot say that the territorial limit of the covenant, nor its tíme limit, were more tfian sufficient reasonably to protect plaintiff’s business and good will. Harrison v. Glucose Sugar Refining Co., 116 F. 304, 58 L. R. A. 915 (C. C. A. 7th); Davis et al. v. A. Booth & Co., 131 F. 31 (C. C. A. 6th).
It is contended that the agreement is unilateral because there was no agreement to give Wark employment for any specified time, but would be effective in case from any cause, .or without cause, the employment ceased. We do not think this is essential to the lawfulness of such covenant.. If such a covenant were made in bad faith, with intent on the part of the employer that the employment would be only long enough to bind the employee to the covenant, and with a view only of preventing him from working elsewhere, a different situation would be presented. The facts disclosed by the pleadings do not raise a suspicion of the bona tides of the contract; and, made as it was in the view of Wark’s previous employment with plaintiff, and his knowledge of its business, we can reach no other conclusion than that there was consideration for Wark’s promise, and that paragraph 6 is valid and enforceable. Meurer Steel Barrell Co., Inc. v. Martin, 1 F.(2d) 687 (C. C. A. 3d); Hunt v. Stimson, 23 F.(2d) 447 (C. C. A. 6th).
The denial in the answer that Wark voluntarily quit the employment, and his allegation that without cause he was discharged by plaintiff, will not affect the merits of the controversy, unless possibly, as above suggested, the discharge was in pursuance of a fraudulent purpose on the part of the employer not to give employment to Wark, but only to prevent him from being employed by others. Under such a covenant it is not important whether the employee was discharged or voluntarily left the employment. Cali v. National Linen Service Corp., 38 F.(2d) 35 (C. C. A. 5th); New York Linen Supply Co. v. Schachter, 125 Misc. Rep. 805, 212 N. Y. S. 72.
We are of opinion that the decree should be limited to enjoining Wark for the five-year period from retaining employment with C. B. Falls Service Company, and from soliciting on behalf of said C. B. Falls Service Company, or any other person or persons directly or indirectly engaged in the business of supplying advertising service to dry cleaners, the names of any customers of plaintiff who, to Wark’s knowledge, were such during the time of his employment with plaintiff, and from directly or indirectly soliciting any such customers on behalf of any person engaged in supplying'advertising service to dry cleaners dpring the period or within the territory as specified and/or in the decree. The decree is directed to be thus modified, and thereupon to be affirmed. Bach party shall pay one-half of the costs of this appeal.
“Sixth: Upon the termination of this agreement or of any modification, renewal or extension thereof. whether such termination takes place in accordance with the provisions of this agreement or for any reason whatsoever, whether with or without cause, the Employee agrees that he will not thereafter reveal the business methods of the Employer or any of the business secrets of the Employer to any one at any time and that he will not practice or make use of them himself, nor will he enter into, engage in, or be connected with any business selling, leasing or supplying advertising, advertising materials or advertising or display services in any form to dry cleaners or men’s or women’s wearing apparel stores, or to any one connected with the dry cleaning industry or with men’s or women’s wearing apparel stores, either directly or indirectly, in his own behalf or for any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, persons, firm or corporation; and the Employee further agrees that he will not go into, or engage in, the dry cleaning business or be employed in any capacity by any person, firm or corporation engaged in the dry cleaning business, or by any association of dry cleaners, for a period of five years from the date of such termination, any where in the United States, except that he may work for dry cleaners or men’s or women's wearing apparel stores and may sell advertising, advertising materials or advertising service to dry cleaners or men’s or women’s wearing apparel stores, in the States of New Mexico, Arizona, Montana, North Dakota, South Dakota and Delaware.”
Question: This question concerns the first listed respondent. 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:
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sc_casesource
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028
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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.
MESA et al. v. CALIFORNIA
No. 87-1206.
Argued December 6, 1988
Decided February 21, 1989
O’Connor, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 140.
Deputy Solicitor General Ayer argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Michael K. Kellogg, Barbara L. Herwig, and John S. Koppel.
Kenneth Rosenblatt argued the cause and filed a brief for respondent.
Justice O’Connor
delivered the opinion of the Court.
We decide today whether United States Postal Service employees may, pursuant to 28 U. S. C. § 1442(a)(1), remove to Federal District Court state criminal prosecutions brought against them for traffic violations committed while on duty.
I
In the summer of 1985 petitioners Kathryn Mesa and Shabbir Ebrahim were employed as mailtruck drivers by the United States Postal Service in Santa Clara County, California. In unrelated incidents, the State of California issued criminal complaints against petitioners, charging Mesa with misdemeanor-manslaughter and driving outside a laned roadway after her mailtruck collided with and killed a bicyclist, and charging Ebrahim with speeding and failure to yield after his mailtruck collided with a police car. Mesa and Ebrahim were arraigned in the San Jose Municipal Court of Santa Clara County on September 16 and October 2, 1985, respectively. The Municipal Court set a pretrial conference in Mesa’s case for November 4, 1985, and set trial for Ebrahim on November 7, 1985.
On September 24 and October 4, 1985, the United States Attorney for the Northern District of California filed petitions in the United States District Court for the Northern District of California for removal to that court of the criminal complaints brought against Ebrahim and Mesa. The petitions alleged that the complaints should properly be removed to the Federal District Court pursuant to 28 U. S. C. § 1442(a)(1) because Mesa and Ebrahim were federal employees at the time of the incidents and because “the state charges arose from an accident involving defendant which occurred while defendant was on duty and acting in the course and scope of her employment with the Postal Service.” Mesa Petition for Removal of Criminal Action ¶3, App. 5. See also Ebrahim Petition for Removal of Criminal Action ¶ 3, App. 10 (“[T]he state charges arose from an accident involving defendant which occurred while defendant was on duty”)- The Santa Clara County District Attorney filed responsive motions to remand, contending that the State’s actions against Mesa and Ebrahim were not removable under § 1442(a)(1). The District Court granted the United States Government’s petitions for removal and denied California’s motions for remand.
California thereupon petitioned the Court of Appeals for the Ninth Circuit to issue a writ of mandamus compelling the District Court to remand the cases to the state court. The Court of Appeals consolidated the petitions, and a divided panel held that “federal postal workers may not remove state criminal prosecutions to federal court when they raise no col-orable claim of federal immunity or other federal defense.” 813 F. 2d 960, 967 (1987). Accordingly, the Court of Appeals issued a writ of mandamus ordering the District Court to deny the United States’ petitions for removal and remand the prosecutions for trial in the California state courts. We granted the United States’ petition for certiorari on behalf of Mesa and Ebrahim, 486 U. S. 1021 (1988), to resolve a conflict among the Courts of Appeals concerning the proper interpretation of § 1442(a)(1). We now affirm.
h-4
The removal provision at issue in this case, 28 U. S. C. § 1442(a), provides:
“A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
“(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
“(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties;
“(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.”
The United States and California agree that Mesa and Ebrahim, in their capacity as employees of the United States Postal Service, were “person[s] acting under” an “officer of the United States or any agency thereof” within the meaning of § 1442(a)(1). Their disagreement concerns whether the California criminal prosecutions brought against Mesa and Ebrahim were “for act[s] under color of such office” within the meaning of that subsection. The United States, largely adopting the view taken by the Court of Appeals for the Third Circuit in Pennsylvania v. Newcomer, 618 F. 2d 246 (1980), would read “under color of office” to permit removal “whenever a federal official is prosecuted for the manner in which he has performed his federal duties . . . .” Brief for Petitioners 8. California, following the Court of Appeals below, would have us read the same phrase to impose a requirement that some federal defense be alleged by the federal officer seeking removal.
A
On numerous occasions in the last 121 years we have had the opportunity to examine § 1442(a) or one of its long line of statutory forebears. In Willingham v. Morgan, 395 U. S. 402, 405 (1969), we traced the “long history” of the federal officer removal statute from its origin in the Act of February 4, 1815, §8, 3 Stat. 198, as a congressional response to New England’s opposition to the War of 1812, through its expansion in response to South Carolina’s 1833 threats of nullification, and its further expansion in the Civil War era as the need to enforce revenue laws became acute, to enactment of the Judicial Code of 1948 when the removal statute took its present form encompassing all federal officers. 395 U. S., at 405-406. “The purpose of all these enactments,” we concluded, “is not hard to discern. As this Court said ... in Tennessee v. Davis, 100 U. S. 257, 263 (1880), the Federal Government
“ ‘can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection, — if their protection must be left to the action of the State court, — the operations of the general government may at any time be arrested at the will of one of its members.’” Id., at 406.
Tennessee v. Davis, 100 U. S. 257 (1880), involved a state murder prosecution brought against a revenue collector who claimed that, while he was in the act of seizing an illegal distillery under the authority of the federal revenue laws, “he was assaulted and fired upon by a number of armed men, and that in defence of his life he returned the fire,” killing one of the assailants. Id., at 261. Davis sought to remove the prosecution to federal court and Tennessee challenged the constitutionality of the removal statute. Rev. Stat. §643. Justice Strong framed the question presented thus:
“Has the Constitution conferred upon Congress the power to authorize the removal, from a State court to a Federal court, of an indictment against a revenue officer for an alleged crime against the State, and to order its removal before trial, when it appears that a Federal question or a claim to a Federal right is raised in the case, and must be decided therein?” 100 U. S., at 262 (emphasis added).
Justice Strong’s emphasis on the presence of a federal defense unifies the entire opinion. He thought it impossible that the Constitution should so weaken the Federal Government as to prevent it from protecting itself against unfriendly state legislation which “may affix penalties to acts done under the immediate direction of the national government, and in obedience to its laws [or] may deny the authority conferred by those laws.” Id., at 263.
Despite these references to a federal defense requirement, the United States argues that Davis justified the killing solely on grounds of self-defense and that the question whether Davis’ act of self-defense was actually justified is purely a question of state law, there being no “federal common law of ‘justification’ applicable to crimes committed by federal employees in the performance of their duties . . . .” Brief for Petitioners 20, n. 7. Thus, the Government concludes, despite much contrary language in the opinion, the fact that we approved the removal of Davis’ prosecution demonstrates that no federal defense is necessary to effect removal.
What the Government fails to note is that the successful legal defensé of “self-defense” depends on the truth of two distinct elements: that the act committed was, in a legal sense, an act of self-defense, and that the act was justified, that is, warranted under the circumstances. In Davis’ case, the truth of the first element depended on a question of federal law: was it Davis’ duty under federal law to seize the distillery? If Davis had merely been a thief attempting to steal his assailants’ property, returning their fire would simply not have been an act of self-defense, pretermitting any question of justification. Proof that Davis was not a thief depended on the federal revenue laws and provided the necessary predicate for removal. See In re Neagle, 135 U. S. 1, 94 (1890) (Lamar, J., dissenting) (“In Tennessee v. Davis . . . [t]he homicide, for which the petitioner was prosecuted, was committed by him while executing his duties, as a revenue officer, in pursuance of the express requirements of the revenue laws, and in defence of his own life, upon a party offering unlawful resistance”) (emphasis added); Maryland v. Soper (No. 2), 270 U. S. 36, 42 (1926) (“Thus removals of prosecutions on account of acts done in enforcement of the revenue or prohibition laws or under color of them properly include those acts committed by a federal officer in defense of his life, threatened while enforcing or attempting to enforce the law. Such acts of defense are really part of the exercise of his official authority. They are necessary to make the enforcement effective”). Accordingly, as Justice Strong’s conclusion in Davis makes clear, we upheld the constitutionality of the federal officer removal statute precisely because the statute predicated removal on the presence of a federal defense:
“It ought, therefore, to be considered as settled that the constitutional powers of Congress to authorize the removal of criminal cases for alleged offences against State laws from State courts to the circuit courts of the United States, when there arises a Federal question in them, is as ample as its power to authorize the removal of a civil case.” 100 U. S., at 271 (emphasis added).
Prior to Davis, we had considered the scope of congressional power to authorize the removal of a civil case in The Mayor v. Cooper, 6 Wall. 247 (1868), and again focused on the presence of a federal defense. Cooper sued the mayor and aldermen of Nashville, Tennessee, for trespasses on real estate and the asportation and conversion of chattels occurring during or shortly after the Civil War. The city officials sought to remove the suit to federal court under the federal officer removal statute. Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 756. They contended that at the time of the alleged trespasses, the mayor and aldermen of Nashville were appointees of the Military Governor of Tennessee and that the trespasses were committed under the order of a Union general. Cooper contended that the removal statute was unconstitutional. In upholding the statute’s constitutionality, we observed: “Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient. That element is decisive upon the subject of jurisdiction.” 6 Wall., at 252 (emphasis added). For purposes of removal, we only required the mayor and aldermen to allege a colorable defense under federal law; “[t]he validity of the defence authorized to be made is a distinct subject. It involves wholly different inquiries. ... It has no connection whatever with the question of jurisdiction.” Id., at 254.
Although we have not always spoken with the same clarity that these early decisions evince, we have not departed from the requirement that federal officer removal must be predicated on the allegation of a colorable federal defense. The United States argues that Cleveland, C., C. & I. R. Co. v. McClung, 119 U. S. 454 (1886), stands for the proposition that a federal defense is not a prerequisite to removal. In McClung a railroad brought suit in state court for recovery of a lien, alleging that a collector of customs had a federal duty under § 10 of 21 Stat. 175 to notify the carrier claiming the lien before delivering merchandise to its ultimate consignees even if the consignees had paid over the lien to the collector. The collector sought to remove the suit to federal court, setting up as his defense that he had no duty to notify the carrier under the federal statute. Despite the obvious presence of a federal question — the proper interpretation of § 10 of the statute — the United States argues that, because the collector’s defense was the absence of a federally created duty under the statute, his was not a federal defense. The argument is unavailing. Apart from the fact that the carrier itself could have brought suit in federal court based on “arising under” jurisdiction, the collector’s defense was clearly based on the statute's determination of the scope of his duties. To assert that a federal statute does not impose certain obligations whose alleged existence forms the basis of a civil suit is to rely on the statute in just the same way as asserting that the statute does impose other obligations that may shield the federal officer against civil suits. Both are equally defensive and equally based in federal law.
A later railroad case, Gay v. Ruff, 292 U. S. 25 (1934), points more definitively to our continuing understanding that federal officer removal must be predicated on a federal defense. Gay was a civil action but with facts remarkably similar to those in the criminal complaint brought against Mesa. Ruff filed suit in state court against Gay, the receiver of a railroad appointed by a Federal District Court, for the wrongful death of his son as a result of the negligent operation of a train by employees of the receiver. Gay sought to remove the action to federal court pursuant to § 33 of the Judicial Code, Act of Aug. 23, 1916, ch. 399, 39 Stat. 532, the then-current version of the federal officer removal statute. Much of Justice Brandéis’ opinion is devoted to determining whether railroad receivers were “officer[s] of the courts of the United States” for purposes of a recent amendment to the removal statute which provided that such an officer could remove to federal court civil or criminal actions against him brought “for or on account of any act done under color of his office or in the performance of his duties as such officer.” Cf. 28 U. S. C. § 1442(a)(3). In the course of his examination of the history of Judicial Code §33, Justice Brandéis concluded that “it applied . . . only when the person defending caused it to appear that his defense was that in doing the acts charged he was doing no more than his duty under those [revenue] laws or orders [of either House of Congress].” 292 U. S., at 33. Applying this understanding to the recent amendment concerning court officers, Justice Brandéis observed that “[t]he defendant receiver does not justify under any judgment or order of a federal court. Nor does the suit present otherwise any federal question. Its only relation to the federal law is that the receiver sued was appointed by a federal court. . . Id., at 34. This, “in harmony with the trend of legislation providing that the federal character of the litigant should not alone confer jurisdiction upon a federal court,” id., at 35, was not enough to sustain the receiver’s petition for removal. “The receiver here sued, although an officer of the court operating the railroad pursuant to the order appointing him, is not an officer engaged in enforcing an order of a court. . . . Nor is there reason to assume that he will in this case rest his defense on his duty to cause the train to be operated.” Id., at 39.
Finally, the Government relies on Maryland v. Soper (No. 1), 270 U. S. 9 (1926), a decision in which we rejected the removal petitions of federal officers. This prohibition era decision involved prohibition agents charged with murder' and rejected the federal officers’ removal petitions on the grounds that the averments in the petitions themselves were “not sufficiently informing and specific to make a case for removal . . . .” Id., at 34. In Soper (No. 1), unlike any prior removal case we had adjudicated, the prohibition agents were only able to assert that they neither committed nor had any knowledge of the murder for which they were charged. They had simply come upon a wounded and dying man in the vicinity of an illegal still which they had destroyed after unsuccessfully giving chase to bootleggers. While rejecting the agents’ petition as “not sufficiently informing,” ibid., Chief Justice Taft also rejected Maryland’s contention that a federal officer can successfully remove a criminal prosecution only “by admitting that he did the act for which he is prosecuted.” Id., at 32. Rather, the Chief Justice enunciated the following test:
“There must be a causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty. But the statute does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority. It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.” Id., at 33.
Unlike the Government, we do not understand the causal connection test of Soper (No. 1) to have eliminated the general requirement that federal officer removal be predicated on the existence of a federal defense. Soper (No. 1) presented a unique criminal prosecution, markedly unlike those before us today, where a federal officer pleaded by traverse and sought removal. While we rejected the removal petition at issue in that case, the decision assumed that a situation could arise in which a petition that pleaded by traverse might warrant removal. Under such circumstances, we suggested that careful pleading, demonstrating the close connection between the state prosecution and the federal officer’s performance of his duty, might adequately replace the specific averment of a federal defense. We are not today presented with such a pleading by traverse and need not decide whether removal on the grounds suggested in Soper (No. 1) would be permissible under either the statute or the Constitution.
Similarly, we do not understand Willingham v. Morgan, 395 U. S. 402 (1969), to have been such a case. In Willing-ham, the petitioner sued federal prison officials in state court on state tort law grounds for injuries he allegedly had received while imprisoned. The officials sought removal on official immunity grounds. See Barr v. Matteo, 360 U. S. 564 (1959); Howard v. Lyons, 360 U. S. 593, 597 (1959) (the validity of a claim of official immunity to state tort actions “must be judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress”); see also Westfall v. Erwin, 484 U. S. 292, 295 (1988). The central question at issue in Willingham was whether the defense of official immunity was sufficient to support removal under § 1442(a)(1). We held that the removal statute “is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law. ... In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” 395 U. S., at 406-407.
In Willingham we adverted to the causal connection test of Soper (No. 1), not as a substitute for the averment of an official immunity defense, but as a means of delimiting the pleading requirements for establishing a colorable defense of that nature. Id., at 409 (“In this case, once petitioners had shown that their only contact with respondent occurred inside the penitentiary, while they were performing their duties, we believe that they had demonstrated the required ‘causal connection.’ The connection consists, simply enough, of the undisputed fact that petitioners were on duty, at their place of federal employment, at all the relevant times”). Despite the Government’s suggestion, we decline to divorce the federal official immunity defense from the pleadings required to allege it and transform those pleading requirements into an independent basis for jurisdiction. Mesa and Ebrahim have not and could not present an official immunity defense to the state criminal prosecutions brought against them. Imbler v. Pachtman, 424 U. S. 409, 429 (1976) (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law”). Accordingly, the liberal pleadings sufficient to allege an
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_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
CALIFORNIA BREWERS ASSN. et al. v. BRYANT et al.
No. 78-1548.
Argued November 27, 1979
Decided February 20, 1980
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White and RehNquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which BheNNAN and BlacemuN, JJ., joined, post, p. 611. Powell and SteveNS, JJ., took no part in the consideration or decision of the case.
Willard Z. Carr, Jr., argued the cause for petitioners. With him on the briefs were Michael D. Ryan, Aaron M. Peck, George Christensen, James R. Madison, and William F. Alderman.
Roland P. Wilder, Jr., argued the cause for respondent unions as respondents under this Court’s Rule 21 (4), urging reversal. With him on the briefs were David Previant, George A. Pappy, and Robert D. Vogel.
James Wolpman argued the cause for respondent Bryant. With him on the brief was Michael P. Goldstein.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, Richard A. Allen, Leroy D. Clark, Joseph T. Eddins, and Beatrice Rosenberg.
J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Gerald A. Rosenberg, John B. Jones, Jr., Norman Redlich, William L. Robinson, and Richard T. Seymour for the Lawyers’ Committee for Civil Rights Under Law; and by Jack Greenberg, James M. Nabrit III, Barry L. Goldstein, O. Peter Sherwood, Daniel B. Edelman, Vilma S. Martinez, and Morris J. Bailer for the NAACP Legal Defense and Educational Fund, Inc., et al.
Bruce A. Nelson, Raymond L. Wheeler, Robert E. Williams, and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 makes unlawful, practices, procedures, or tests that “operate to 'freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U. S. 424, 430. To this rule, § 703 (h) of the Act, 42 U. S. C. § 2000e-2 (h), provides an exception:
“[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race....”
In Teamsters v. United States, 431 U. S. 324, 352, the Court held that “the unmistakable purpose of § 703 (h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII . . . even where the employer’s pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes.”
The present case concerns the application of § 703 (h) to a particular clause in a California brewery industry collective-bargaining agreement. That agreement accords greater benefits to “permanent” than to “temporary” employees, and the clause in question provides that a temporary employee must work at least 45 weeks in a single calendar year before he can become a permanent employee. The Court of Appeals for the Ninth Circuit held that the 45-week requirement was not a “seniority system” or part of a “seniority system” within the meaning of § 703 (h). 585 F. 2d 421. We granted cer-tiorari to consider the important question presented under Title YII of the Civil Rights Act of 1964. 442 U. S. 916.
I
In 1973, respondent Bryant (hereafter respondent), a Negro, filed a complaint in the United States District Court for the Northern District of California, on behalf of himself and other similarly situated Negroes, against the California Brewers Association and seven brewing companies (petitioners here), as well as against several unions. The complaint alleged that the defendants had discriminated against the respondent and other Negroes in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., and in violation of 42 U. S. C. § 1981.
The complaint, as amended, alleged that the respondent had been intermittently employed since May 1968 as a temporary employee of one of the defendants, the Falstaff Brewing Corp. It charged that all the defendant employers had discriminated in the past against Negroes, that the unions had acted in concert with the employers in such discrimination, and that the unions had discriminated in referring applicants from hiring halls to the employers. The complaint further asserted that this historical discrimination was being perpetuated by the seniority and referral provisions of the collective-bargaining agreement (Agreement) that governed industrial relations at the plants of the seven defendant employers. In particular, the complaint alleged, the Agreement’s requirement that a temporary employee work 45 weeks in the industry in a single calendar year to reach permanent status had, as a practical matter, operated to preclude the respondent and the members of his putative class from achieving, or from a reasonable opportunity of achieving, permanent employee status. Finally, the complaint alleged that on at least one occasion one of the defendant unions had passed over the respondent in favor of more junior white workers in making referrals to job vacancies at a plant of one of the defendant employers.
The Agreement is a multiemployer collective-bargaining agreement negotiated more than 20 years ago, and thereafter updated, by the California Brewers Association (on behalf of the petitioner brewing companies) and the Teamsters Brewery and Soft Drink Workers Joint Board of California (on behalf of the defendant unions). The Agreement establishes several classes of employees and the respective rights of each with respect to hiring and layoffs. Three of these classes are pertinent here: “permanent,” “temporary,” and “new” employees.
A permanent employee is “any employee . . . who . . . has completed forty-five weeks of employment under this Agreement in one classification [] in one calendar year as an employee of the brewing industry in [the State of California].” An employee who acquires permanent status retains that status unless he “is not employed under this Agreement for any consecutive period of two (2) years. ...” A temporary employee under the Agreement is “any person other than a permanent employee . . . who worked under this agreement ... in the preceding calendar year for at least sixty (60) working days. ...” A new employee is any employee who is not a permanent or temporary employee.
The rights of employees with respect to hiring and layoffs depend in substantial part on their status as permanent, temporary, or new employees. The Agreement requires that employees at a particular plant be laid off in the following order: new employees in reverse order of their seniority at the plant, temporary employees in reverse order of their plant seniority, and then permanent employees in reverse order of their plant seniority. Once laid off, employees are to be rehired in the reverse order from which they were laid off.
The Agreement also gives permanent employees special “bumping” rights. If a permanent employee is laid off at any plant subject to the Agreement, he may be dispatched by the union hiring hall to any other plant in the same local area with the right to replace the temporary or new employee with the lowest plant seniority at that plant.
Finally, the Agreement provides that each employer shall obtain employees through the local union hiring hall to fill needed vacancies. The hiring hall must dispatch laid-off workers to such an employer in the following order: first, employees of that employer in the order of their seniority with that employer; second, permanent employees registered in the area in order of their industry seniority; third, temporary employees in the order of their seniority in the industry; and fourth, new employees in the order of their industry seniority. The employer then “shall have full right of selection among” such employees.
The District Court granted the defendants’ motions to dismiss the complaint for failure to state a claim on which relief could be granted. No opinion accompanied this order. A divided panel of the Court of Appeals reversed, 585 F. 2d 421, concluding that the 45-week rule is not a “seniority system” or part of a “seniority system” within the meaning of § 703 (h) of Title VII. In the appellate court’s view the provision “lacks the fundamental component of such a system” which is “the concept that employment rights should increase as the length of an employee’s service increases.” 585 F. 2d, at 426. The court pointed out that under the Agreement some employees in the industry could acquire permanent status after a total of only 45 weeks of work if those weeks were served in one calendar year, while others “could work for many years and never attain permanent status because they were always terminated a few days before completing 45 weeks of work in any one year.” Id., at 426-427.
The Court of Appeals concluded that “while the collective bargaining agreement does contain a seniority system, the 45-week provision is not a part of it.” Id., at 427: Accordingly, the Court of Appeals remanded the case to the District Court to enable the respondent to prove that the 45-week provision has had a discriminatory impact on Negroes under the standards enunciated in Griggs v. Duke Power Co., 401 U. S. 424. 585 F. 2d, at 427-428.
“The 45-week rule is simply a classification device to determine who enters the permanent employee seniority line and this function does not make the rule part of a seniority system. Otherwise any hiring policy (e. g., an academic degree requirement) or classification device (e. g., merit promotion) would become part of a seniority system merely because it affects who enters the seniority line.” Id., at 427, n. 11.
II
Title VII does not define the term “seniority system,” and no comprehensive definition of the phrase emerges from the legislative history of § 703 (h) . Moreover, our cases have not purported to delineate the contours of its meaning. It is appropriate, therefore, to begin with commonly accepted notions about “seniority” in industrial relations, and to consider those concepts in the context of Title YII and this country’s labor policy.
In the area of labor relations, “seniority” is a term that connotes length of employment. A “seniority system” is a scheme that, alone or in tandem with non-“seniority” criteria, allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase. Unlike other methods of allocating employment benefits and opportunities, such as subjective evaluations or educational requirements, the principal feature of any and every “seniority system” is that preferential treatment is dispensed on the basis of some measure of time served in employment.
Viewed as a whole, most of the relevant provisions of the Agreement before us in this case conform to these core concepts of “seniority.” Rights of temporary employees and rights of permanent employees are determined according to length of plant employment in some respects, and according to length of industry employment in other respects. Notwithstanding this fact, the Court of Appeals concluded that the 45-week rule should not be viewed, for purposes of § 703 (h), as part of what might otherwise be considered a “seniority system.” For the reasons that follow, we hold that this conclusion was incorrect.
First, by legislating with respect to “systems” of seniority in § 703 (h), Congress in 1964 quite evidently intended to exempt from the normal operation of Title VII more than simply those components of any particular seniority scheme that, viewed in isolation, embody or effectuate the principle that length of employment will be rewarded. In order for any seniority system to operate at all, it has to contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment. For instance, every seniority system must include rules that delineate how and when the seniority time-clock begins ticking, as well as rules that specify how and when a particular person’s seniority may be forfeited. Every seniority system must also have rules that define which passages of time will “count” towards the accrual of seniority and which will not. Every seniority system must, moreover, contain rules that particularize the types of employment conditions that will be governed or influenced by seniority, and those that will not. Rules that serve these necessary purposes do not fall outside § 703 (h) simply because they do not, in and of themselves, operate on the basis of some factor involving the passage of time.
Second, Congress passed the Civil Rights Act of 1964 against the backdrop of this Nation’s longstanding labor policy of leaving to the chosen representatives of employers and employees the freedom through collective bargaining to establish conditions of employment applicable to a particular business or industrial environment. See generally Steelworkers v. Weber, 443 U. S. 193. It does not behoove a court to second-guess either that process or its products. Porter Co. v. NLRB, 397 U. S. 99. Seniority systems, reflecting as they do, not only the give and take of free collective bargaining, but also the specific characteristics of a particular business or industry, inevitably come in all sizes and shapes. See Ford Motor Co. v. Huffman, 345 U. S. 330; Aeronautical Lodge v. Campbell, 337 U. S. 521. As we made clear in the Teamsters case, seniority may be “measured in a number of ways” and the legislative history of § 703 (h) does not suggest that it was enacted to prefer any particular variety of seniority system over any other. 431 U. S., at 355, n. 41.
What has been said does not mean that § 703 (h) is to be given a scope that risks swallowing up Title YII’s otherwise broad prohibition of “practices, procedures, or tests” that disproportionately affect members of those groups that the Act protects. Significant freedom must be afforded employers and unions to create differing seniority systems. But that freedom must not be allowed to sweep within the ambit of § 703 (h) employment rules that depart fundamentally from commonly accepted notions concerning the acceptable contours of a seniority system, simply because those rules are dubbed “seniority” provisions or have some nexus to an arrangement that concededly operates on the basis of seniority. There can be no doubt, for instance, that a threshold requirement for entering a seniority track that took the form of an educational prerequisite would not be part of a “seniority system” within the intendment of § 703 (h).
The application of these principles to the case at hand is straightforward. The Agreement sets out, in relevant part, two parallel seniority ladders. One allocates the benefits due temporary employees; the other identifies the benefits owed permanent employees. The propriety under § 703 (h) of such parallel seniority tracks cannot be doubted after the Court’s decision in the Teamsters case. The collective-bargaining agreement at issue there allotted one set of benefits according to each employee’s total service with the company, and another set according to each employee’s service in a particular job category. Just as in that case the separation of seniority tracks did not derogate from the identification of the provisions as a “seniority system” under § 703 (h), so in the present case the fact that the system created by the Agreement establishes two or more seniority ladders does not prevent it from being a “seniority system” within the meaning of that section.
The 45-week rule, correspondingly, serves the needed function of establishing the threshold requirement for entry into the permanent-employee seniority track. As such, it performs the same function as did the employment rule in Teamsters that provided that a line driver began to accrue seniority for certain purposes only when he started to work as a line driver, even though he had previously spent years as a city driver for the same employer. In Teamsters, the Court expressed no reservation about the propriety of such a threshold rule for § 703 (h) purposes. There is no reason why the 45-week threshold requirement at issue here should be considered any differently.
The 45-week rule does not depart significantly from commonly accepted concepts of “seniority.” The rule is not an educational standard, an aptitude or physical test, or a standard that gives effect to subjectivity. Unlike such criteria, but like any “seniority” rule, the 45-week requirement focuses on length of employment.
Moreover, the rule does not distort the operation of the basic system established by the Agreement, which rewards employment longevity with heightened benefits. A temporary employee’s chances of achieving permanent status increase inevitably as his industry employment and seniority accumulate. The temporary employees with the most industry seniority have the first choice of new jobs within the industry available for temporary employees. Similarly, the temporary employees with the most plant seniority have the first choice of temporary employee jobs within their plant and enjoy the greatest security against “bumping” by permanent employees from nearby plants. As a general rule, therefore, the more seniority a temporary employee accumulates, the more likely it is that he will be able to satisfy the 45-week requirement. That the correlation between accumulated industry employment and acquisition of permanent employee status is imperfect does not mean that the 45-week requirement is not a component of the Agreement’s seniority system. Under any seniority system, contingencies such as illnesses and layoffs may interrupt the accrual of seniority and delay realization of the advantages dependent upon it.
For these reasons, we conclude that the Court of Appeals was in error in holding that the 45-week rule is not a component of a “seniority system” within the meaning of § 703 (h) of Title VII of the Civil Rights Act of 1964. In the District Court the respondent will remain free to show that, in respect to the 45-week rule or in other respects, the seniority system established by the Agreement is not “bona fide,” or that the differences in employment conditions that it has produced are “the result of an intention to discriminate because of race.”
For the reasons stated, the judgment before us is vacated, and the case is remanded to the Court of Appeals for the Ninth Circuit for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Powell and Mr. Justice Stevens took no part in the consideration or decision of this case.
78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq.
United Air Lines, Inc. v. Evans, 431 U. S. 553, extended this holding to preclude Title VII challenges to seniority systems that perpetuated the effects of discriminatory post-Act practices that had not been the subject of a timely complaint. See also Teamsters v. United States, 431 U. S., at 348, n. 30.
The complaint also alleged, under 29 U. S. C. §§ 159 and 185, that the union defendants had breached their duty of fair representation by, among other things, negotiating “unreasonable privileges for some employees over others. . .
In this Court, the respondent emphasizes that he has not contended that there is anything illegal in classifying employees as permanent and temporary or in according greater rights to permanent than to temporary employees. His sole Title VII challenge in this respect has been to the 45-week rule on its face and as it has been applied by the defendant unions and employers.
The Agreement classifies employees into brewers, bottlers, drivers, shipping and receiving clerks, and checkers. Under the Agreement, separate seniority lists have to be maintained for each of these classifications of employees. The respondent is a brewer.
An employee may also lose permanent status if he “quits the industry” or is discharged for certain specified reasons.
In addition, permanent employees are given preference over temporary employees with respect to various other employment matters, such as the right to collect supplemental unemployment benefits upon layoff, wages and vacation pay, and choice of vacation times.
The Court of Appeals also observed that “the 45-week requirement makes the system particularly susceptible to discriminatory application since employers and unions can manipulate their manpower requirements and employment patterns to prevent individuals who are disfavored from ever achieving permanent status.” 585 F. 2d, at 427. This danger, according to the court, is almost never present in any “true” seniority system, in which rights “usually accumulate automatically over time. . . .” Ibid.
The Court of Appeals directed the trial court on remand to consider as well the respondent’s claims -under 42 U. S. C. § 1981 and 29 U. S. C. §§ 159 and 185.
See 110 Cong. Rec. 1518, 5423, 7207, 7213, 7217, 12723, 15893 (1964). The example of a “seniority system” most frequently cited in the congressional debates was one that provided that the “last hired” employee would be the “first fired.” Nowhere in the debates, however, is there any suggestion that this model was intended to be anything other than an illustration.
See Tram World Airlines, Inc. v. Hardison, 432 U. S. 63; United Air Lines, Inc. v. Evans, 431 U. S. 553; Teamsters v. United States, 431 U. S. 324; Franks v. Bowman Transportation Co., 424 U. S. 747.
Webster’s Third New International Dictionary 2066 (unabridged ed. 1961) defines “seniority,” in pertinent part, as the “status attained by length of continuous service ... to which are attached by custom or prior collective agreement various rights or privileges ... on the basis of ranking relative to others. ...”
A collective-bargaining agreement could, for instance, provide that transfers and promotions are to be determined by a mix of seniority and other factors, such as aptitude tests and height requirements. That the “seniority” aspects of such a scheme of transfer and promotion might be covered by § 703 (h) does not mean that the aptitude tests or the height requirements would also be so covered.
See E. Beal, E. Wickersham, & P. Kienast, The Practice of Collective Bargaining 430-431 (1972); Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598, 1602 (1969); Aaron, Reflections on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev. 1532, 1534 (1962).
Webster’s Third New International Dictionary 2322 (unabridged ed. 1961) defines “system,” in pertinent part, as a “complex unity formed of many often diverse parts subject to a common plan or serving a common purpose.”
See generally S. Slichter, J. Healy, & E. Livemash, The Impact of Collective Bargaining on Management 115-135 (1960).
By way of example, a collective-bargaining agreement could specify that an employee begins to accumulate seniority rights at the time he commences employment with the company, at the time he commences employment within the industry, at the time he begins performing a particular job function, or only after a probationary period of employment.
For example, a collective-bargaining agreement could provide that accumulated seniority rights are permanently forfeited by voluntary resignation, by severance for cause, or by nonemployment at a particular plant or in the industry for a certain period.
For instance, the time an employee works in the industry or with his current employer might not be counted for the purpose of accumulating seniority rights, whereas the time the employee works in a particular job classification might determine his seniority.
By way of example, a, collective-bargaining agreement could provide that an employee's seniority will govern his entitlement to vacation time and his job security in the event of layoffs, but will have no influence on promotions or job assignments.
The examples in the text of the types of rules necessary to the operation of a seniority system are not intended to and do not comprise an exhaustive list.
There are indications in the record of this case that a long-term decline in the California brewing industry’s demand for labor is a reason why the accrual of seniority as a temporary employee has not led more automatically to the acquisition of permanent status. But surely, what would be part of a “seniority system” in an expanding labor market does not become something else in a declining labor market.
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_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
FARMERS’ AND MERCHANTS’ BANK, a corporation, Appellant, v. UNITED STATES of America, Appellee.
No. 72-1883.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1973.
Decided April 6, 1973.
Thomas N. Chambers, Charleston, W. Va. (Benjamin G. Reeder, Morgantown, W. Va., Louis S. Southworth, II, Charleston, W. Va., Reeder & Shuman, Morgantown, W. Va., and Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellant.
Charles R. Burnett, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Attys., Tax Div., U. S. Dept, of Justice, Paul C. Camilletti, U. S. Atty., and James F. Companion, Asst. U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
ALBERT V. BRYAN, Senior Circuit Judge:
A refund of 1964 Federal income taxes was sued for by the Farmers’ and Merchants’ Bank of Morgantown, West Virginia in April 1972, but the District Court sustained the Government in denying the tax benefit on which the bank’s claim rested.- The bank appeals.
Its claim, amounting to $36,410.20 plus interest, arose in the computation of the bad debt deduction allowed for income tax purposes. 26 U.S.C. § 166 (Internal Revenue Code of 1954.) Since 1948, with the permission of the Secretary of the Treasury, the bank had utilized the uniform ratio method of calculating its reserve for bad debts, pursuant to 26 U.S.C. § 166(c). The formula for establishing the annual addition to this reserve, it was stipulated, “involved the application of an average loss experience factor for the determination of the ratio of losses to outstanding loans for the taxable year”. For 1964 this factor when based upon the ratio of outstanding loans thought by the bank to be eligible produced for appellant bank $61,066.91, and this sum was therefore deducted from its taxable income.
The bank here contends that under a mistaken belief of their ineligibility, loans known as “Federal funds sold”, explained in stipulation 8, infra, amounting to $1,200,000 were omitted from the aggregate outstanding loans in computing its 1964 bad debt reserve; that if this amount had been included, the reserve would have been $133,909.31 instead of $61,066.91, a difference of $72,842.40; and the bank would have then been assessable with $36,410.20 less in taxes — the amount now in suit.
The point of this appeal is that the Government in 1964 let some other banks include Federal funds sold as outstanding loans in calculating their bad debt reserve, but without reason denied this privilege to the appellant. It does so by a 1968 Internal Revenue ruling, infra, that allows the benefit of such an inclusion only to a bank which claimed it in its return for a taxable year prior to November 1968. Thus, it refused appellant this privilege because it was not asserted in its 1964 return but, rather, by way of a timely claim for refund filed in 1966.
The facts of the case were agreed by the parties and, essentially, the bank’s claim evolved from the following provisions of the stipulation:
“8. In March, 1964, officials of Mellon National Bank and Trust Company outlined a procedure to officials of plaintiff known in banking circles as ‘Federal funds sold.’ ‘Federal funds sold’ is a term used to describe a loan from one bank to another which is collaterally secured by United States Government securities owned by the borrower. The loans are normally of short duration, from one to three days in most cases. The purpose of the transaction, in the case of the borrower, usually is to meet reserve requirements and, in the ease of the lender, is to loan excess reserve funds. .
“10. The first transaction in ‘Federal funds sold’ by plaintiff occurred in April, 1964. The amount of Federal funds loaned to Mellon during 1964 ranged from a low of $0 to a high of $2,000,000 on October 6, 1964. On December 31, 1964, the bank had outstanding a ‘Federal funds sold’ loan to Mellon in the amount of $1,200,000.
“11. ... It was the plaintiff’s intention to add to its bad debt reserve for 1964, and to deduct in arriving at its taxable income for such year the maximum amount allowable under the method or formula prescribed by [the Government formula to establish the reserve].
“16. If this Court should determine that the plaintiff is entitled to include the aforesaid ‘Federal funds sold’ loan of $1,200,000 to Mellon among its eligible loans outstanding for purposes of the formula computation, the plaintiff’s maximum addition to its reserve for bad debts for 1964, is $133,909.31, or a sum of $72,842.40 larger than the maximum addition as computed in its 1964 income tax return.
“19. On or about April 9, 1966, the plaintiff filed with the District Director of Internal Revenue for the District of West Virginia, Parkersburg, West Virginia, a claim for refund of 1964 income taxes. .
“20. By letter dated January 27, 1969, the District Director of Internal Revenue, Parkersburg, West Virginia, transmitted to plaintiff a copy of an examination report respecting plaintiff’s 1964 and 1965 Federal income tax returns. . . . Said examination report denies plaintiff’s claim for refund of 1964 Federal income taxes in the amount of $36,421.20. The reason given for disallowance of the claim was stated . . . to be that ‘Recently the National Office [of the Internal Revenue Service] ruled that the claim for refund, is not allowable based on Revenue Ruling 68-630.’ .” (Accent added.)
The inequity of the Government’s position appears on a reading of Revenue Ruling 68-630. It is said to “clarify” the bad debt reserve computation. The ruling, in effect, declares that the course pursued by the appellant in not including ‘Federal funds sold’ was always the correct course. Nevertheless, the clarification indulges the “incorrect” banks to retain their gains while declining on a procedural point to accord the appellant enjoyment of the same indulgence. The unfairness is compounded by the stipulated fact that 68-630 was promulgated more than two and one-half years after the refund claim was filed — the rules of the game were changed at the end of the contest.
Revenue Ruling 68-630 in its apt parts provides as follows:
“SECTION 1. PURPOSE.
The purpose of this Revenue Ruling is to clarify certain questions regarding the eligibility of items for inclusion in the loan base by banks using the uniform. reserve ratio method of computing annual additions to reserves for bad debts.
“SECTION 8. MONEY MARKET INVESTMENTS.
Accordingly, it is held that banks using the uniform reserve ratio method .. . must exclude from the loan base upon which annual additions to a reserve are calculated the following money market obligations:
(1) ‘Sales’ or ‘loans’ of Federal funds irrespective of the purchaser or borrower. .
“SECTION 10. EXTENT OF APPLICATION WITHOUT RETROACTIVE EFFECT.
The position stated in this Revenue Ruling clarifies certain questions that have arisen concerning computation of the loan base but does not represent a change in a previously published position of the Internal Revenue Service. It would, therefore, normally be applied to all open taxable years. However, in view of the nature of the deduction for additions to a reserve for bad debts, over-all tax deductions to taxpayers here involved would not be significantly affected by the timing of the application of this Revenue Ruling. Therefore, under the authority of section 7805(b) of the Code, the position stated herein will not be applied by the Service to deductions claimed for taxable years ending on or before November SO, 1968, to the extent that such deductions were based on inclusion of the following items in the loan base (accent added):
(4) ‘Sales’ or ‘loans’ of Federal funds. .
“The amount of the deduction for an addition to the reserve for bad debts for a taxable year must be based upon the amount contemporaneously entered on the taxpayer’s books during the taxable year, or as soon as practicable after the close of the taxable year, and cannot be subsequently increased.”
The Government attempts to salve its discrimination by embracing the discretion vested in the Secretary of Treasury by 26 U.S.C. § 7805 as follows:
(b) Retroactivity of regulations or rulings. — The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.”
But here the Secretary abused his discretion, for “The Commissioner cannot tax one and not tax another without some rational basis for the difference”. Justice Frankfurter concurring in United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 1210, 4 L.Ed.2d 1233 (1960). No rational basis is found here for differentiating between the appellant and the other banks. Fortunately, such use of discretion is reviewable, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957), and we decry it.
The Government would excuse the arbitrary retroactivity of revenue Ruling 68-630 by saying that it was not a departure from prior rulings, since the Government had never given permission to any bank to use Federal funds sold in calculating a bad debt reserve. But this assertion dissolves on scrutiny. The Government had approved the very method of computing the bad debt reserve followed by the appellant and over the years had deliberately withheld disapproval of Federal funds sold as eligible loan-predicates for fixing bad debt reserves. It was quite aware of this practice and unequivocally tolerated it with full knowledge of its prevalence. That this acquiescence was accepted by the banks, as well as acknowledged by the Government, is evidenced by the need for clarification emphasized in the ruling and by the anointment of the practice for years prior to November 1968. Such a reversal of position, as applied to this taxpayer, is too inequitable to be permissible. Cf. Exchange Parts Company of Fort Worth v. United States, 279 F.2d 251, 254, 150 Ct.Cl. 538 (1960).
Added argument against the appellant relies upon the last paragraph in Section 10 of Ruling 68-630, supra, providing that the reserve cannot be “subsequently increased” after the close of the taxable year. True, the appellant does endeavor to increase its 1964 reserve, but not by the injection of a later accrued sum. The addition is simply a correction of previous figures. Surely this is not the kind of increase forbidden in the ruling, for either the Government or the taxpayer may rectify an earlier erroneous return. This again demonstrates that the appellant’s claim was rejected because it was made in the form of a refund request instead of in an original deduction.
Finally, the Government suggests that the instant claim should fail because the benefit accruing to the “incorrect” banks will be “washed out in* later years” and that all banks will then be on the same footing. But this is no ground for withholding from this taxpayer the asserted deduction, for the Government’s suggestion is no more than a prediction ■ — one that did not prove true between 1964 and 1968. Moreover, the argument totally ignores appellant’s right to equal treatment for the specific tax year involved.
Our mandate will vacate the judgment at trial and direct the District Court to order the refund for which the Farmers’ and Merchants’ Bank of Morgantown sued.
Vacated with directions.
. See Mimeograph 6209, C.B. 1947-2, 26; modified Rev.Rul. 54-148.
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
MUTUAL TRUST LIFE INS. CO. v. TARDELLI.
No. 4664.
United States Oo-urt of Appeals First Circuit.
Jan. 28, 1953.
Bailey Aldrich, Boston, Mass. (Choate, Hall & Stewart, Boston, Mass., on brief), for appellant.
, Lawrence R. Cohen, Boston, Mass., for ■appellee.
Before MAGRUDER, 'Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment entered March 19, 1952, by the United States District Court for the District of Massachusetts on verdicts denying the plaintiff-appellant, Mutual Trust Life Insurance Company, rescission of two life insurance policies and finding for the defendant-appellee on her counterclaim for the amount of the policies.
Appellant is an Illinois corporation and appellee is a citizen of Massachusetts. The face amount of the two policies is ten thousand dollars, so there is unquestioned jurisdiction under 28 U.S.C. § 1332.
The appellant sought to rescind or declare void these policies either on the ground that appellee’s husband, Raymond J. Tardelli, the insured, had made material misrepresentations in his application for insurance or on the ground that at the time of delivery of the policies and payment of the first premiums, the applicant was not in good health. The appellee widow filed a counterclaim to recover the face amount of the policies.
It is admitted that due proofs of death on October 16, 1950 had been furnished and that all premiums called for by the policies had been paid. On March 14 and 18, 1952, the case was tried before a jury which returned verdicts in favor of appellee and on March 19, 1952 judgment was entered for appellee on the appellant’s claim and for the appellee on her counterclaim, in the sum of $10,771.66, with costs.
Appellant contends that there was prejudicial error in rulings on evidence and in the charge to the jury. The evidentiary rulings appealed from concern the exclusion of part's of a hospital record and the exclusion of certain testimony offered through appellant’s medical expert. The asserted defect in the charge is that it failed to define excessive drinking, as appellant had requested, and that it did not instruct the jury properly with regard to burden of proof. The trial court refused appellant’s request to instruct the jury to the effect that under these insurance policies, good health at the time of delivery is a condition precedent to recovery.
We think that the refusal of this latter request constitutes reversible error and this inadequacy of instruction on burden of proof is ground for a new trial.
With regard to this question, appellant requested the court to charge the jury as follows: “If at the time of the delivery of the policies and the payment of the first premiums Mr. Tardelli was not in good health, you must find for the Company.” After appellant had noted its objections to the court’s failure to give three requests, the court added the following to its charge:
“Counsel call to my attention that I neglected to state that the burden of proof in any case is on the person who alleges it. The burden in the suit for cancellation of the policy is on the insurance company; they must satisfy you by the greater weight of the evidence that what they allege is true, that this man procured this policy through misrepresentation, or under such conditions as would increase the risk of loss. And if they have not maintained that burden, but still leave you in doubt, then they canpot cancel.
“Now, similarly in the cross action the plaintiff is ordinarily chargeable with the burden of proving his case. And in this case, I am going to charge you that the burden is still up to the plaintiff to show you by the greater weight of the evidence that what she alleges is true, that is, that he took out this insurance and that he did it in good faith, and that he should recover.”
The application for insurance, which is part of the contract, describes the insured as being in good health and contains the following provision: “ * *. * it is agreed as follows: * * * (2) that the Company shall incur no liability under this application until it has been received, approved, a policy issued and delivered and the full first premium specified in the policy has actually been paid to and' accepted by the Company, all while the Insured’s health, habits and occupation and any other condition relating to the Insured are as described in this application. * * * ” This clause creates a condition precedent,- Barker v. Metropolitan Life Ins. Co., 1905, 188 Mass. 542, 74 N.E. 945 so that the burden of proving that the insured was in good health at the time of the delivery of the policies was on the appellee — beneficiary. Connolly v. John Hancock Mut. Life Ins. Co., 1948, 322 Mass. 678, 79 N.E.2d 189.
The evidence in this case definitely raised the question ,of whether or not the insured was in good health at the time» of delivery and we think that the jury was not adequately instructed in this regard.
The policies were delivered and the first premiums were paid on November 10, 1949. There is evidence that Tardelli was a patient at the Bellows Health Farm from October 11 to 18, and from November 1 to 4, 1949, complaining of being “tired out and exhausted” and requiring treatment “to quiet the stomach and nerves.” It appears from the record that this is a health farm for men, which has facilities for training athletes and for rehabilitating men and that “at the farm they include patients who have trouble with alcohol.” According to the death certificate, Tardelli had been suffering from chronic alcoholism for a period of five years before his death on October 16, 1950. This was contradicted by oral testimony introduced by appellee tending to show that the addiction to alcohol had lasted only a few months.
In view of this evidence, an instruction with regard to appellee’s burden of showing insured’s good health on November 10, 1949, was essential for a fair consideration of appellant’s defense to the counterclaim.
We do not agree with appellee’s argument that any omission on this point in the charge was not prejudicial. The court instructed the jury with regard to the conflicting evidence on excessive drinking but these instructions were given in discussing the action for cancellation on the ground of misrepresentation. We cannot read them as a statement that it was incumbent upon the appellee' to show to the jury by a preponderance of the evidence that her husband was in good health when the policies were delivered. It was certainly prejudicial to the appellant to confuse the issue of misrepresentation with the issue of whether appellee made the showing required for recovery on her counterclaim.
Since we hold that the charge to the jury was insufficient and prejudicial to the appellant in failing to explain the burden of proof, as to the insured’s health at the time of the delivery of the policies and the payment of the first premiums, it becomes unnecessary for us to decide the other questions raised on this appeal.
The judgment of the district court is vacated and the case is remanded to that court for a new trial; the appellant recovers costs on appeal.
. The only portion of the charge which could support appellee’s assertion of harmless error is that which says:
“ * * * You must find that the statement in the death certificate regarding chronic alcoholism is true, unless the beneficiary produced evidence, which you believed, showing the death certificate to be false.
“What you must do in deciding this case is to try to project your minds back to the date when Mr. Tardelli took out this life insurance, that date or a date prior to that, and determine for yourself whether he was in fact an excessive drinker, whether he had knowledge of that fact, and whether he intended to deceive. You have the records, the death certificate and some other hospital records, that would indicate one answer to the question of whether or not he drank to excess. On the other hand, you have got the testimony of his wife and an attorney which would negative that question, or that idea. And you have got to decide on the evidence and the logical inferences that flow from it in your own mind, just what Mr. Tardelli’s condition was on that date.”
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_7-3-3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
R. E. PECKHAM, etc., Appellant, v. RONRICO CORPORATION et al., Defendants, Appellees.
No. 5596.
United States Court of Appeals First Circuit.
April 11, 1961.
Jay E. Darlington, Hammond, Ind., for appellant.
Jose G. Gonzalez, San Juan, P. R., with whom Ruben Rodriguez-Antongiorgi and Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., were on brief, for appellees.
Before WOODBURY, Chief Judge, MARIS, Senior Circuit Judge, and HARTIGAN, Circuit Judge.
Sitting by designation.
WOODBURY, Chief Judge.
This is another appeal in protracted litigation in this court and in the United States District Court for the District of Puerto Rico. This time appeal is taken from a judgment dismissing the plaintiff-appellant’s complaint and intervening claim with prejudice and ordering entry of judgment for the defendants, with costs, and also from a subsequent order of the court below denying the appellant’s motion as plaintiff and intervenor for a new trial. The only relief the appellant seeks is a new trial, presumably before another judge, on the ground that the judge who tried the case had a personal bias and prejudice against the appellant and his counsel and in favor of the defendants.
After the mandate in accordance with this court’s opinion of April 13, 1954 (211 F.2d 727), went down on May 17, several motions of one sort or another were filed in the court below and orders entered thereon, and on September 29, 1954, the defendants moved that a date be set for trial. Acting in response to that motion the court on the same day set the case for trial on December 6,1954. The plaintiff and intervenor filed an opposition to this motion and the court after hearing on October 29, set its previous order aside and fixed February 21, 1955, as the date for trial.
During the summer and fall of 1954 the plaintiff and intervenor filed a number of motions for inspection of the defendants’ records many of which after hearing were acted upon favorably in whole or in part. Then, on January 10, 1955, the plaintiff and intervenor filed a motion under Title 28 U.S.C. § 144 for the judge to disqualify himself for bias and prejudice with a supporting affidavit and certificate of counsel as the section requires. Two grounds for the motion were asserted in the affidavit filed in its support. One was that the court had manifested hostility to the appellant in the opinion which it had filed nearly two years before on March 31, 1953 (14 F. R.D. 181), denying his motion to intervene and which came before this court on his last appeal, Peckham v. Ronrico Corp., 1 Cir., 1954, 211 F.2d 727. The other was that like hostility on the part of the judge was shown by his remarks in the course of a hearing on November 22, 1954, on opposed motions of the plaintiff and intervenor for inspection of certain documents in the defendants’ possession. The court below denied the motion for disqualification as both untimely and insufficient and ordered the affidavit in support of the motion stricken as scandalous. The trial then proceeded on schedule.
The plaintiff and intervenor took forty trial days to present his case in the court below. He alleges on this appeal that during that time the court evidenced such hostility to him and to his counsel and such partiality for the defendants that he was deprived of a fair trial in violation of his constitutional rights.
We think the appellant’s motion for disqualification was properly denied by the court below. There is no need to pause to point out the insufficiency of the affidavit filed in support of the motion insofar as concerns allegations of bias and prejudice based on the language used by the court in its opinion of March 31, 1953. It is enough to say that § 144 makes timely filing of affidavits of bias and prejudice of the essence for the obvious purpose of preventing their use as a device to obtain last minute postponements of trial and to prevent a litigant from sampling the temper of the court before deciding whether or not to file an affidavit of prejudice and that the present affidavit, insofar as it relates to the statements in the district court’s opinion, which it is said contained statements of the court showing its hostility to the appellant and his counsel, was clearly filed far too late. The time to question the court’s statements in its opinion was on the appeal from the order entered in accordance with that opinion which, indeed, the appellant did, although this court did not regard the contention as having sufficient basis even to warrant mention. Having raised the question once the appellant cannot raise it again.
The charge that the court below exhibited bias and prejudice in remarks made at the hearing on November 22, 1954, on the plaintiff's and intervenor’s motion for disclosure, if timely, impresses us as simply frivolous. We cannot, of course, tell the judge’s tone of voice from the record. But what the court said gives no indication that the court harbored any disqualifying bias or prejudice whatever.
The same may be said with respect to the remarks made by the court during the course of the plaintiff’s and intervenor’s presentation of his case. This consumed many trial days of a busy court, the case had been pending for years and the docket entries and such parts of the transcript of the trial as are reproduced in the record appendix indicate that perhaps counsel for the plaintiff and intervenor had not proceeded as diligently as he might in bringing his case to trial and in presenting his evidence. These circumstances would justify the court in sometimes speaking sharply in an effort to expedite the trial and to induce plaintiff’s and intervenor’s counsel to come to the critical point of hie case. A careful examination of the appellant’s record appendix does not show that the court below ever went so far as to exhibit any disqualifying bias and prejudice. The assertion that the court exceeded proper bounds in its remarks is frivolous.
Judgment will be entered affirming the judgment of the District Court.
. See Peckham v. Ronrico Corp., 1 Cir., 1948, 171 F.2d 653; Peckham v. Ronrico Corp., 1 Cir., 1954, 211 F.2d 727.
. Alternatively, the judge was asked voluntarily to disqualify himself pursuant to Title 28 U.S.C. § 455. Relief under this section is not pressed and the section is so obviously inapplicable that no further notice of it needs to be taken.
. See In re United Shoe Machinery Corp., 1 Cir., 1960, 276 F.2d 77, 79.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
sc_authoritydecision
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. RYAN
No. 758.
Argued April 26, 1971
Decided May 24, 1971
BRENNAN, J., delivered the opinion for a unanimous Court.
Jerome M. Feit argued the cause for the United States. With him on the briefs were Solicitor General Gris-wold, Assistant Attorney General Wilson, and Philip R. Monahan.
Herbert J. Miller, Jr., argued the cause for respondent. With him on the brief were Raymond G. Larroca and Nathan Lewin.
Mr. Justice Brennan
delivered the opinion of the Court.
In March of 1968, respondent was served with a subpoena duces tecum commanding him to produce before a federal grand jury all books, records, and documents of five named companies doing business in Kenya. He moved, on several grounds, to quash the subpoena. The District Court denied the motion to quash and, in light of respondent’s claim that Kenya law forbids the removal of books of account, minute books, and lists of members from the country without consent of its Registrar of Companies, ordered him to attempt to secure such consent and, if unsuccessful, to make the records available for inspection in Kenya. The Court of Appeals, 430 F. 2d 658 (CA9 1970), held that by directing respondent to make application to a Kenyan official for release of some of the records, the District Court had done “more than deny a motion to quash; it in effect granted a mandatory injunction.” Id., at 659. The Court of Appeals therefore concluded that the order was appealable under 28 U. S. C. § 1292 (a)(1) and, reaching the merits, reversed. Ibid. We granted certiorari, 400 U. S. 1008 (1971). We conclude that the District Court’s order was not appeal-able, and reverse.
Respondent asserts no challenge to the continued validity of our holding in Cobbledick v. United States, 309 U. S. 323 (1940), that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey. Respondent, however, argues that Cob-bledick does not apply in the circumstances before us because, he asserts, unless immediate review of the District Court’s order is available to him, he will be forced to undertake a substantial burden in complying with the subpoena, and will therefore be “powerless to avert the mischief of the order.” Perlman v. United States, 247 U. S. 7, 13 (1918).
We think that respondent’s assertion misapprehends the thrust of our cases. Of course, if he complies with the subpoena he will not thereafter be able to undo the substantial effort he has exerted in order to comply. But compliance is not the only course open to respondent. If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review. But we have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906); cf. United States v. Blue, 384 U. S. 251 (1966); DiBella v. United States, 369 U. S. 121 (1962); Carroll v. United States, 354 U. S. 394 (1957). Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims have we allowed exceptions to this principle. We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant. See DiBella v. United States, supra, at 131-132. Denial of review in such circumstances would mean that the Government might indefinitely retain the property without any opportunity for the movant to assert on appeal his right to possession. Similarly, in Perlman v. United States, 247 U. S., at 12-13, we allowed immediate review of an order directing a third party to produce exhibits which were the property of appellant and, he claimed, immune from production. To have denied review would have left Perlman “powerless to avert the mischief of the order,” id., at 13, for the custodian could hardly have been expected to risk a citation for contempt in order to secure Perlman an opportunity for judicial review. In the present case, however, respondent is free to refuse compliance and, as we have noted, in such event he may obtain full review of his claims before undertaking any burden of compliance with the subpoena. Perlman, therefore, has no application in the situation before us.
Finally, we do not think that the District Court’s order was rendered a temporary injunction appealable under 28 U. S. C. § 1292 (a)(1) by its inclusion of a provision requiring respondent to seek permission from the Kenyan authorities to remove some of the documents from that country, and in the event that permission was denied to permit Government officials access to the documents in Kenya. The subpoena, if valid, placed respondent under a duty to make in good faith all reasonable efforts to comply with it, and respondent himself had asserted that compliance would be in violation of Kenya law unless permission to remove was properly obtained. Read against this background, the District Court’s order did nothing more than inform respondent before the event of what efforts the District Court would consider sufficient attempts to comply with the subpoena. We cannot imagine that respondent would be prosecuted for contempt if he produced the documents as required but without attempting to obtain permission from the authorities in Kenya. The additional provisions in the order added nothing to respondent’s burden and, if anything, rendered the burden of compliance less onerous. They did not convert denial of a motion to quash into an appealable injunctive order.
Reversed.
The District Court ordered that:
“I. The motion of [respondent] to quash the subpoena duces tecum is denied.
“II. [Respondent] will produce, with the exception of the books of account, minute books and the list of members, before the Federal grand jury at Los Angeles, California, on September 11, 1968, the books, records, papers and documents of Ryan Investment, Ltd., of Nairobi, Kenya, and Mawingo, Ltd., of Nanyuki and Nairobi, Kenya, doing business as The Mount Kenya Safari Club, referred to in the . . . subpoena duces tecum served on [respondent].
“III. [Respondent] shall forthwith make application to the Registrar of Companies in Kenya to release the books of account, minute books, and list of members so that [respondent] may produce these books, records, papers and documents at the Federal grand jury held at Los Angeles, California, on September 11, 1968, provided that if [respondent] is unable to secure the consent of the Registrar of Companies of Kenya, then [respondent] will malee available to agents of the United States Department of Justice and/or the United States Department of the Treasury the books Of account, minute books, and list of members, of Ryan Investment, Ltd., and Mawingo, Ltd., and these agents may inspect and make copies of these books and records.” App. 63-64.
The statute provides, in pertinent part, that: “The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions . . . .”
In such event, of course, respondent could still object to the introduction of the subpoenaed material or its fruits against him at a criminal trial. United States v. Blue, 384 U. S. 251, 255 (1966).
Walker v. Birmingham, 388 U. S. 307 (1967), is not to the contrary. Our holding that the claims there sought to be asserted were not open on review of petitioners’ contempt convictions was based upon the availability of review of those claims at an earlier stage.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Mickey D. STAGGS, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
No. 20194.
United States Court of Appeals, Eighth Circuit.
Aug. 6, 1970.
Mickey D. Staggs filed brief pro se. Bert C. Hurn, U. S. Atty., and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., filed brief of appellee.
Before VAN OOSTERHOUT, JOHN-SEN and HEANEY, Circuit Judges.
PER CURIAM.
Petitioner, Mickey D. Staggs, appeals pro se from a judgment of the United States District Court for the Western District of Missouri denying his petition for a writ of habeas corpus.
On June 17, 1963, the petitioner was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S. C. § 5017(c), in the United States District Court for the Middle District of Tennessee. Section 5017 (c) provides that:
“A youth offender committed under 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.”
Subsequently, the petitioner’s conviction was vacated, and on February 2, 1965, he was again convicted and resentenced under 18 U.S.C. § 5017(c). He was given no credit for time served under the initial sentence. On June 1, 1966, the petitioner was conditionally released with supervision to continue to February 1, 1971. He was subsequently arrested and convicted on two separate charges in the state courts of Tennessee. On the basis of these convictions, a Parole Violator Warrant issued on January 11, 1968, and was executed on June 5, 1969, at the Tennessee State Penitentiary. The petitioner was committed to the Federal Correctional Institution, Texarkana, Texas; he was given a parole revocation hearing in Texarkana; and his parole was revoked. The petitioner subsequently was transferred to the Medical Center in Springfield, Missouri.
On appeal, the petitioner raises six issues previously raised in the District Court. His primary contention is that he should have been given credit at the time he was resentenced on February 2, 1965, for time served under his June 17, 1963, sentence for the same offense. This contention has been mooted by the petitioner’s release from the Medical Center on July 3, 1970, in accordance with current policy giving credit for time served on vacated sentences. See, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Beufve v. United States, 374 F.2d 123 (5th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 122, 19 L.Ed.2d 175 (1967).
The petitioner’s remaining five contentions concern the validity of his sentence and the validity of his parole revocation. We do not decide these questions here as they either have been mooted by the petitioner’s release or properly should have been brought before the sentencing court on a § 2255 motion.
Judgment accordingly.
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_respondent
|
124
|
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.
TEXACO INC. v. DAGHER et al.
No. 04-805.
Argued January 10, 2006
Decided February 28, 2006
Glen D. Nager argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 04-805 were Craig E. Stewart, Joe Sims, and Louis K. Fisher. On the briefs for petitioner in No. 04-814 were Ronald L. Olson, Bradley S. Phillips, Stuart N. Senator, and Paul J. Watford.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal in both cases. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Barnett, Deputy Solicitor General Hungar, Catherine G. O’Sullivan, and Adam D. Hirsh.
Joseph M. Alioto argued the cause for respondents in both cases. With him on the brief were Daniel R. Shulman and Gregory Merz.
Together with No. 04-814, Shell Oil Co. v. Dagher et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both cases were filed for the American Bankers Association et al. by W. Stephen Smith and Beth S. Brinkmann; for the American Petroleum Institute by Robert A. Long, Jr., Harry M. Ng, and Douglas W. Morris; for the Chamber of Commerce of the United States of America by Raymond A. Jacobsen, Jr., Stephen A. Bokat, Robin S. Conrad, and Amar D. Sarwal; for Verizon Communications Inc. by Roy T. Englert, Jr., Donald J. Russell, John Thorne, and Paul J. Larkin, Jr.; and for Visa U. S. A. Inc. et al. by M. Laurence Popofsky and Stephen V. Bomse.
Stephen F. Ross filed a brief for the American Antitrust Institute as amicus curiae urging affirmance in both cases.
Briefs of amici curiae were filed in both eases for the Northwest Ohio Physician Specialists Cooperative, LLC, by Charles D. Weller and Frederick Byers; and for the Retail Industry Leaders Association et al. by Lloyd Constantine and Michelle A. Peters. Steve C. Vaughn filed a brief for the Parker Hannifin Corp. as amicus curiae in No. 04-805.
Justice Thomas
delivered the opinion of the Court.
From 1998 until 2002, petitioners Texaco Inc. and Shell Oil Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western United States under the original Texaco and Shell Oil brand names. Respondents, a class of Texaco and Shell Oil service station owners, allege that petitioners engaged in unlawful price fixing when Equilon set a single price for both Texaco and Shell Oil brand gasoline. We granted certiorari to determine whether it is per se illegal under § 1 of the Sherman Act, 15 U. S. C. § 1, for a lawful, economically integrated joint venture to set the prices at which the joint venture sells its products. We conclude that it is not, and accordingly we reverse the contrary judgment of the Court of Appeals.
I
Historically, Texaco and Shell Oil have competed with one another in the national and international oil and gasoline markets. Their business activities include refining crude oil into gasoline, as well as marketing gasoline to downstream purchasers, such as the service stations represented in respondents’ class action.
In 1998, Texaco and Shell Oil formed- a joint venture, Equilon, to consolidate their operations in the western United States, thereby ending competition between the two companies in the domestic refining and marketing of gasoline. Under the joint venture agreement, Texaco and Shell Oil agreed to pool their resources and share the risks of and profits from Equilon’s activities. Equilon’s board of directors would comprise representatives of Texaco and Shell Oil, and Equilon gasoline would be sold to downstream purchasers under the original Texaco and Shell Oil brand names. The formation of Equilon was approved by consent decree, subject to certain divestments and other modifications, by the Federal Trade Commission, see In re Shell Oil Co., 125 F. T. C. 769 (1998), as well as by the state attorneys general of California, Hawaii, Oregon, and Washington. Notably, the decrees imposed no restrictions on the pricing of Equilon gasoline.
After the joint venture began to operate, respondents brought suit in District Court, alleging that, by unifying gasoline prices under the two brands, petitioners had violated the per se rule against price fixing that this Court has long recognized under § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1. See, e. g., Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643, 647 (1980) (per curiam). The District Court awarded summary judgment to Texaco and Shell Oil. It determined that the rule of reason, rather than a per se rule or the quick look doctrine, governs respondents’ claim, and that, by eschewing rule of reason analysis, respondents had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing petitioners’ position as a request for an “exception to the per se prohibition on price-fixing,” and rejecting that request. Dagher v. Saudi Refining, Inc., 369 F. 3d 1108, 1116 (2004). We consolidated Texaco’s and Shell Oil’s separate petitions and granted certiorari to determine the extent to which the per se rule against price fixing applies to an important and increasingly popular form of business organization, the joint venture. 545 U. S. 1138 (2005).
II
Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” 15 U. S. C. § 1. This Court has not taken a literal approach to this language, however. See, e. g., State Oil Co. v. Khan, 522 U. S. 3, 10 (1997) (“[T]his Court has long recognized that Congress intended to outlaw only unreasonable restraints” (emphasis added)). Instead, this Court presumptively applies rule of reason analysis, under which antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful. See, e. g., id., at 10-19. Per se liability is reserved for only those agreements that are “so plainly anti-competitive that no elaborate study of the industry is needed to establish their illegality.” National Soc. of Professional Engineers v. United States, 435 U. S. 679, 692 (1978). Accordingly, “we have expressed reluctance to adopt per se rules . . . ‘where the economic impact of certain practices is not immediately obvious.’ ” State Oil, supra, at 10 (quoting FTC v. Indiana Federation of Dentists, 476 U. S. 447, 458-459 (1986)).
Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful. See, e. g., Catalano, supra, at 647. These cases do not present such an agreement, however, because Texaco and Shell Oil did not compete with one another in the relevant market — namely, the sale of gasoline to service stations in the western United States — but instead participated in that market jointly through their investments in Equilon. In other words, the pricing policy challenged here amounts to little more than price setting by a single entity — albeit within the context of a joint venture — and not a pricing agreement between competing entities with respect to their competing products. Throughout Equilon’s existence, Texaco and Shell Oil shared in the profits of Equilon’s activities in their role as investors, not competitors. When “persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit.. . such joint ventures [are] regarded as a single firm competing with other sellers in the market.” Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 356 (1982). As such, though Equilon’s pricing policy may be price fixing in a literal sense, it is not price fixing in the antitrust sense. See Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 9 (1979) (“When two partners set the price of their goods or services they are literally 'price fixing,’ but they are not per se in violation of the Sherman Act”).
This conclusion is confirmed by respondents’ apparent concession that there would be no per se liability had Equilon simply chosen to sell its gasoline under a single brand. See Tr. of Oral Arg. 34. We see no reason to treat Equilon differently just because it chose to sell gasoline under two distinct brands at a single price. As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price. If Equilon’s price unification policy is anticompetitive, then respondents should have challenged it pursuant to the rule of reason. But it would be inconsistent with this Court’s antitrust precedents to condemn the internal pricing decisions of a legitimate joint venture as per se unlawful.
The court below reached the opposite conclusion by invoking the ancillary restraints doctrine. 369 F. 3d, at 1118-1124. That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities. See, e. g., National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 113-115 (1984); Citizen Publishing Co. v. United States, 394 U. S. 131, 135-136 (1969). Under the doctrine, courts must determine whether the nonventure restriction is a naked restraint on trade, and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business association, and thus valid. We agree with petitioners that the ancillary restraints doctrine has no application here, where the business practice being challenged involves the core activity of the joint venture itself — namely, the pricing of the very goods produced and sold by Equilon. And even if we were to invoke the doctrine in these cases, Equilon’s pricing policy is clearly ancillary to the sale of its own products. Judge Fernandez, dissenting from the ruling of the court below, put it well:
“In this case, nothing more radical is afoot than the fact that an entity, which now owns all of the production, transportation, research, storage, sales and distribution facilities for engaging in the gasoline business, also prices its own products. It decided to price them the same, as any other entity could. What could be more integral to the running of a business than setting a price for its goods and services?” 369 F. 3d, at 1127.
See also Broadcast Music, supra, at 23 (“Joint ventures and other cooperative arrangements are ... not usually unlawful, at least not as price-fixing schemes, where the agreement on price is necessary to market the product at all”).
* * *
Because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under § 1 of the Sherman Act, respondents’ antitrust claim cannot prevail. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Alito took no part in the consideration or decision of these cases.
We presume for purposes of these cases that Equilon is a lawful joint venture. Its formation has been approved by federal and state regulators, and there is no contention here that it is a sham. As the court below noted: “There is a voluminous record documenting the economic justifications for creating the joint ventures. [T]he defendants concluded that numerous synergies and cost efficiencies would result” by creating Equilon as well as a parallel venture, Motiva Enterprises, in the eastern United States, and “that nationwide there would be up to $800 million in cost savings annually.” 369 F. 3d 1108, 1111 (CA9 2004). Had respondents challenged Equilon itself, they would have been required to show that its creation was anticompetitive under the rule of reason. See Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984).
Respondents have not put forth a rule of reason claim. 369 F. 3d, at 1113. Accordingly, we need not address petitioners’ alternative argument that § 1 of the Sherman Act is inapplicable to joint ventures.
Respondents alternatively contend that petitioners should be held liable under the quick look doctrine. To be sure, we have applied the quick look doctrine to business activities that are so plainly anticompetitive that courts need undertake only a cursory examination before imposing antitrust liability. See California Dental Assn. v. FTC, 526 U. S. 756, 770 (1999). But for the same reasons that per se liability is unwarranted here, we conclude that petitioners cannot be held liable under the quick look doctrine.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_respond2_5_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
Victor LANGDEAU, Appellant, v. STATE OF SOUTH DAKOTA and Its Agents, et al., Appellees.
No. 71-1149.
United States Court of Appeals, Eighth Circuit.
June 30, 1971.
Gary J. Pashby, Sioux Falls, filed brief for appellant.
Gordon Mydland, Atty. Gen., Pierre, S. D., and Roger Schiager, Special Asst. Atty. Gen., William J. Srstka, Jr. Asst. Atty. Gen., filed brief for appellee.
Before LAY, HEANEY and BRIGHT, Circuit Judges.
LAY, Circuit Judge.
This is a post conviction appeal from a denial by the federal district court of habeas corpus to a state prisoner in South Dakota. The petitioner raises two issues on appeal: (1) whether the requirement of a $3,000 cash bond was in violation of the defendant’s “constitutional right to bail,” and (2) whether the defendant’s plea of guilty was involuntarily entered.
The defendant was arrested on or about July 10, 1964, and charged with the crime of indecent molestation of a child in violation of S.D.C. § 13.1727 (Supp.1960) now S.Dak.Comp.Láws 22-22-7 (1967). A $3,000 cash bond was required pending trial. As an indigent he was unable to post the bail required. On July 15, 1964, petitioner was appointed trial counsel. On November 18, 1964, he was brought to trial. •This resulted in a hung jury. Thereafter, he was returned to jail until January 4, 1965, when he asked leave to withdraw his previous plea and enter a plea of guilty to the charge. He was sentenced to 10 years in the South Dakota penitentiary.
Petitioner has exhausted his state remedies. He was given a full eviden-tiary hearing in the state court. The decision denying him post conviction relief was affirmed by the South Dakota Supreme Court. Langdeau v. State, S. D., 179 N.W.2d 121 (1970).
Petitioner asserts that he pled guilty because of the conditions of his confinement in the Hughes County Jail. The evidence shows that the jail was not segregated by separate cells, that it was crowded beyond its normal capacity, that petitioner was harassed (primarily because of the nature of the charge pending against him), and that the petitioner did not like the food that was being given to him. At the time petitioner pled guilty he made known to the trial court his overall discontent with the jail conditions. The court then examined petitioner in detail as to whether he was entering his plea solely because of these conditions or whether he knowingly and voluntarily wanted to do so. The trial judge who accepted the plea was the same judge who heard the evidence at petitioner’s trial. We have reviewed this evidence. As the trial court commented in accepting the guilty plea, the evidence clearly substantiates petitioner’s guilt of the crime charged. In view of petitioner’s confinement under the conditions of which he complained, before accepting the plea of guilty the state trial court offered to impanel a jury and give the petitioner an immediate trial. The petitioner then answered that this would not be necessary because he wanted to enter his plea. Petitioner stated at the state post-conviction evi-dentiary hearing that his appointed counsel had told him that if he pled guilty he would get a reduced sentence. Although there is nothing of record demonstrating any plea bargaining, the statement of the trial judge indicates that the defendant did receive a reduced sentence by reason of his guilty plea.
Our analysis of the record leads us to conclude that petitioner’s discontent with his preconviction existence in the community jail served only as a circumstance, perhaps at best motivating the timing of his decision to plead guilty. Petitioner’s' distaste for his jaii food is no more a factor than his interest in obtaining a reduced sentence. As taught in Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), such factors serve only as “but for” reasons surrounding the guilty plea. The significant test remains yet to be answered: whether the plea of guilty was “an intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970). Using Brady as the paradigm, the fact that the jail conditions “caused” the plea does not demonstrate that petitioner was unaware of all the surrounding factors and their “likely consequences.” Here the record unequivocally demonstrates to the contrary. The facts are insufficient to hold as a matter of law that invidious discrimination or psychological coercion induced an involuntary guilty plea. The state trial court, as did the federal district court, placed emphasis on the fact that the petitioner was represented by competent counsel and waived the court’s offer to immediately retry the case. Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision. We cannot say that there did not exist sufficient facts to support the state trial court’s, and the federal district judge’s, finding that the plea was voluntarily made. The decisions of McMann v. Richardson, supra; Brady v. United States, supra; and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), along with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), require a prisoner represented by competent counsel, where a full and fair guilty plea hearing has taken place, to assume a heavy burden to set aside his guilty plea.
In view of the conviction being sustained, the issue concerning the constitutionality of preeonviction bail is moot.
Judgment affirmed.
. According to the trial judge the verdict stood at 11 to 1 for conviction.
. See McGee, “Our Sick Jails,” Federal Probation 3, March 1971.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
|
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.
RELIANCE ELECTRIC CO. v. EMERSON ELECTRIC CO.
No. 70-79.
Argued November 10-11, 1971
Decided January 11, 1972
Thomas P. Mulligan argued the cause for petitioner. With him on the briefs were Patrick J. Amer, Stephen J. Bums, and Kenneth S. Teasdale.
Albert E. Jenner, Jr., argued the cause for respondent. With him on the brief were Wesley G. Hall, R. H. McRoberts, and Thomas C. Walsh.
Walter P. North argued the cause for the Securities and Exchange Commission as amicus curiae. With him on the briefs were Solicitor General Griswold, Samuel Huntington, Philip A. Loomis, Jr., and Jacob H. Stillman.
Whitney North Seymour and John A. Guzzetta filed a brief for Gulf & Western Industries, Inc., as amicus curiae.
Me, Justice Stewart
delivered the opinion of the Court.
Section 16 (b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. § 78p (b), provides, among other things, that a corporation may recover for itself the profits realized by an owner of more than 10% of its shares from a purchase and sale of its stock within any six-month period, provided that the owner held more than 10% “both at the time of the purchase and sale.” In this case, the respondent, the owner of 13.2% of a corporation’s shares, disposed of its entire holdings in two sales, both of them within six months of purchase. The first sale reduced the respondent’s holdings to 9.96%, and the second disposed of the remainder. The question presented is whether the profits derived from the second sale are recoverable by the Corporation under § 16 (b). We hold that they are not.
I
On June 16, 1967, the respondent, Emerson Electric Co., acquired 13.2% of the outstanding common stock of Dodge Manufacturing Co., pursuant to a tender offer made in an unsuccessful attempt to take over Dodge. The purchase price for this stock was $63 per share. Shortly thereafter, the shareholders of Dodge approved a merger with the petitioner, Reliance Electric Co. Faced with the certain failure of any further attempt to take over Dodge, and with the prospect of being forced to exchange its Dodge shares for stock in the merged corporation in the near future, Emerson, following a plan outlined by its general counsel, decided to dispose of enough shares to bring its holdings below 10%, in order to immunize the disposal of the remainder of its shares from liability under § 16 (b). Pursuant to counsel’s recommendation, Emerson on August 28 sold 37,000 shares of Dodge common stock to a brokerage house at $68 per share. This sale reduced Emerson’s holdings in Dodge to 9.96% of the outstanding common stock. The remaining shares were then sold to Dodge at $69 per share on September 11.
After a demand on it by Reliance for the profits realized on both sales, Emerson filed this action seeking a declaratory judgment as to its liability under § 16 (b). Emerson first claimed that it was not liable at all, because it was not a 10% owner at the time of the purchase of the Dodge shares. The District Court disagreed, holding that a purchase of stock falls within § 16 (b) where the purchaser becomes a 10% owner by virtue of the purchase. The Court of Appeals affirmed this holding, and Emerson did not cross-petition for certiorari. Thus that question is not before us.
Emerson alternatively argued to the District Court that, assuming it was a 10% stockholder at the time of the purchase, it was liable only for the profits on the August 28 sale of 37,000 shares, because after that time it was no longer a 10% owner within the meaning of § 16 (b). After trial on the issue of liability alone, the District Court held Emerson liable for the entire amount of its profits. The court found that Emerson’s sales of Dodge stock were “effected pursuant to a single predetermined plan of disposition with the overall intent and purpose of avoiding Section 16 (b) liability,” and construed the term “time of . . . sale” to include “the entire period during which a series of related transactions take place pursuant to a plan by which a 10%' beneficial owner disposes of his stock holdings ” 306 F. Supp. 588, 592.
On an interlocutory appeal under 28 U. S. C. § 1292 (b), the Court of Appeals upheld the finding that Emerson “split” its sale of Dodge stock simply in order to avoid most of its potential liability under § 16 (b), but it held this fact irrelevant under the statute so long as the two sales are “not legally tied to each other and [are] made at different times to different buyers . . . .” 434 F. 2d 918, 926. Accordingly, the Court of Appeals reversed the District Court’s judgment as to Emerson’s liability for its profits on the September 11 sale, and remanded for a determination of the amount of Emerson’s liability on the August 28 sale. Reliance filed a petition for certiorari, which we granted in order to consider an unresolved question under an important federal statute. 401 U. S. 1008.
II
The history and purpose of § 16 (b) have been exhaustively reviewed by federal courts on several occasions since its enactment in 1934. See, e. g., Smolowe v. Delendo Corp., 136 F. 2d 231; Adler v. Klawans, 267 F. 2d 840; Blau v. Max Factor & Co., 342 F. 2d 304. Those courts have recognized that the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great. As one court observed:
“In order to achieve its goals, Congress chose a relatively arbitrary rule capable of easy administration. The objective standard of Section 16 (b) imposes strict liability upon substantially all transactions occurring within the statutory time period, regardless of the intent of the insider or the existence of actual speculation. This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.” Bershad v. McDonough, 428 F. 2d 693, 696.
Thus Congress did not reach every transaction in which an investor actually relies on inside information. A person avoids liability if he does not meet the statutory definition of an “insider,” or if he sells more than six months after purchase. Liability cannot be imposed simply because the investor structured his transaction with the intent of avoiding liability under § 16 (b). The question is, rather, whether the method used to “avoid” liability is one permitted by the statute.
Among the “objective standards” contained in § 16 (b) is the requirement that a 10% owner be such “both at the time of the purchase and sale ... of thé security involved.” Read literally, this language clearly contemplates that a statutory insider might sell enough shares to bring his holdings below 10%, and later — but still within six months — sell additional shares free from liability under the statute. Indeed, commentators on the securities laws have recommended this exact procedure for a 10% owner who, like Emerson, wishes to dispose of his holdings within six months of their purchase.
Under the approach urged by Reliance, and adopted by the District Court, the apparent immunity of profits derived from Emerson’s second sale is lost where the two sales, though independent in every other respect, are “interrelated parts of a single plan.” 306 F. Supp., at 592. But a “plan” to sell that is conceived within six months of purchase clearly would not fall within § 16 (b) if the sale were made after the six months had expired, and we see no basis in the statute for a different result where the 10% requirement is involved rather than the six-month limitation.
The dissenting opinion, post, at 442, reasons that “the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information,” and that it thus “follows that all sales by a more-than-10% owner within the six-month period carry the presumption of a taint, even if a prior transaction within the period has reduced the beneficial ownership to 10% or below.” While there may be logic in this position, it was clearly rejected as a basis for liability when Congress included the proviso that a 10% owner must be such both at the time of the purchase and of the sale. Although the legislative history affords no explanation of the purpose of the proviso, it may be that Congress regarded one with a long-term investment of more than 10% as more likely to have access to inside information than one who moves in and out of the 10% category. But whatever the rationale of the proviso, it cannot be disregarded simply on the ground that it may be inconsistent with our assessment of the “wholesome purpose” of the Act.
To be sure, where alternative constructions of the terms of § 16 (b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders. But a construction of the term “at the time of . . . sale” that treats two sales as one upon proof of a pre-existing intent by the seller is scarcely in harmony with the congressional design of predicating liability upon an “objective measure of proof.” Smolowe v. Delendo Corp., supra, at 235. Were we to adopt the approach urged by Reliance, we could be sure that investors would not in the future provide such convenient proof of their intent as Emerson did in this case. If a “two-step” sale of a 10% owner’s holdings within six months of purchase is thought to give rise to the kind of evil that Congress sought to correct through § 16 (b), those transactions can be more effectively deterred by an amendment to the statute that preserves its mechanical quality than by a judicial search for the will-o’-the-wisp of an investor’s “intent” in each litigated case.
III
The Securities and Exchange Commission, participating as amicus curiae, argues for an interpretation of the statute that both covers Emerson’s transaction and preserves the mechanical quality of the statute. Seizing upon a fragment of legislative history — a brief exchange between one of the principal authors of the bill and two members of the Senate Committee during hearings on the bill — the Commission suggests that the sole purpose of the requirement of 10%' ownership at the time of both purchase and sale was to exclude from the statute’s coverage those persons who became 10% shareholders “involuntarily,” as, for example, by legal succession or by a reduction in the total number of outstanding shares of the corporation. The effect of such an interpretation would be to bring within § 16 (b) all sales within six months by one who has gained the position of a 10%' owner through voluntary purchase, regardless of the amount of his holdings at the time of the sale. We cannot accept such a construction of the Act.
In the first place, we note that the SEC’s own rules undercut such an interpretation. Recognizing the interrelatedness of § 16 (a) and § 16 (b) of the Act, the Commission has used its power to grant exemptions under § 16 (b) to exclude from liability any transaction that does not fall within the reporting requirements of § 16 (a). A 10% owner is required by that section to report at the end of each month any changes in his holdings in the corporation during that month. The Commission has interpreted this provision to require a report only if the stockholder held more than 10% of the corporation’s shares at some time during the month. Thus, a 10% owner who, like Emerson, sells down to 9.96% one month and disposes of the remainder the following month, would presumably be exempt from the reporting requirement and hence from § 16 (b) under the SEC’s own rules, without regard to whether he acquired the stock “voluntarily.”
But the SEC’s argument would fail even if it were not contradicted by the Commission’s own previous construction of the Act. As we said in Blau v. Lehman, 368 U. S. 403, 411, one “may agree that . . . the Commission present [s] persuasive policy arguments that the Act should be broadened ... to prevent 'the unfair use of information’ more effectively than can be accomplished by leaving the Act so as to require forfeiture of profits only by those specifically designated by Congress to suffer those losses.” But we are not free to adopt a construction that not only strains, but flatly contradicts, the words of the statute.
The judgment is
Affirmed.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
Section 16 (b) provides:
“For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months . . . shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. . . . This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.” 15 U. S. C. §78p (b).
The term “such beneficial owner” refers to one who owns “more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 12 of this title.” Securities Exchange Act of 1934, § 16 (a), 15 U. S. C. §78p (a).
The Court of Appeals for the Second Circuit has held that an exchange of shares in one corporation for those of another pursuant to a merger agreement constitutes a “sale” within the meaning of § 16 (b). Newmark v. RKO General, Inc., 425 F. 2d 348, 354.
“[A] person who owns 15 percent and wants to sell down to 5 percent should sell 5-plus percent in one transaction and then, after he becomes a holder of slightly less than 10 percent, sell out the remainder.” 2 L. Loss, Securities Regulation 1060 (2d ed. 1961).
“[T]he intention of the language was to exclude the second sale in a case where 10% is purchased, 5% sold within three months and the remaining 5% a month later. This latter construction of the Act is, it is believed, the only safe one to rely upon.” Seligman, Problems Under the Securities Exchange Act, 21 Va. L Rev. 1, 20 (1934).
See, e. g., Adler v. Klawans, 267 F. 2d 840 (one who is a director at the time of sale need not also have been a director at the time of purchase). In interpreting the terms "purchase" and "sale," courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse. See, e. g., Bershad v. McDonough, 428 F. 2d 693 (granting of an option to purchase constitutes a "sale"). And in deciding whether an investor is an "officer" or "director" within the meaning of § 16 (b), courts have allowed proof that the investor performed the functions of an officer or director even though not formally denominated as such. Colby v. Klune, 178 F. 2d 872, 873; cf. Feder v. Martin Marietta Corp., 406 F. 2d 260, 262-263. The various tests employed in these cases are used to determine whether a transaction, objectively defined, falls within or without the terms of the statute. In no case is liability predicated upon "considerations of intent, lack of motive, or improper conduct" that are irrelevant in § 16 (b) suits. Blau v. Oppenheim, 250 F. Supp. 881, 887.
That exchange was as follows:
“Senator Carey. Suppose this stock passed to an estate, and the estate had to raise money?
“Mr. Corcoran. I do not think, in that case, sir, the statute would apply.
“Senator Kean. Why not?
“Senator Carey. The estate is the beneficiary.
“Mr. Corcoran. I do not believe it would. Certainly the intention was that it should not apply to that sort of a situation.” Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency pursuant to S. Res. 84, 56, and 97, 73d Cong., 1st and 2d Sess., pt. 15, p. 6558. It was sometime after this exchange that the bill was revised to add the exemptive provision.
SEC Rule 16a-10, 17 CFR § 240.16a-10.
Form 4, Securities Exchange Act Release No. 6487 (Mar. 9, 1961).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appstate
|
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 "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.
SUNRAY DX OIL COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Gulf Oil Corporation, Humble Oil & Refining Company, Texaco Inc., and Sun Oil Company, Intervenors in Nos. 8311, 8312, 8313, and 8314.
Nos. 7781, 8298, 8311-8317, 8358-8360, 8362.
United States Court of Appeals Tenth Circuit.
Dec. 9, 1966.
William K. Tell, Jr., and William R. Slye, Cleveland, Ohio, for petitioners in Nos. 7781, 8298, 8315, 8316, 8358, 8359, 8360, and 8362, and for intervenors Gulf Oil Corporation, Humble Oil & Refining Co., and Texaco, Inc., in Nos. 8311, 8312, 8313, and 8314. With them on the briefs were:
Homer E. McEwen, Jr., and J. P. Greve, Tulsa, Okl., for Sunray DX Oil Co., petitioner in No. 7781;
Dixon Morgan and McAfee, Hanning, Newcomer, Hazlett & Wheeler, Cleveland, Ohio, and Richard F. Remmers, Oklahoma City, Okl., for Sohio Petroleum Co., petitioner in No. 8298;
James J. Flood, Jr., Houston, Tex., for Texaco, Inc., petitioner in No. 8315 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Warren M. Sparks and Arthur F. Whitt, Tulsa, Okl., for Gulf Oil Corporation, petitioner in No. 8316 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Wilmer D. Masterson, III, and Kilgore & Kilgore, Dallas, Tex., for Edwin L. Cox, petitioner in No; 8358;
Robert W. Henderson, Dallas, Tex., for Lamar Hunt, petitioner in No. 8359;
Carl Illig, Jesse H. Foster, Jr., and James K. Schooler, Houston, Tex., for Humble Oil & Refining Co., petitioner in No. 8360 and intervenor in Nos. 8311, 8312, 8313, and 8314;
Vernon W. Woods, Shreveport, La., for Union Producing Co., petitioner in No. 8362.
Phillip D. Endom, New Orleans, La., for Sun Oil Co., petitioner in No. 8317 and intervenor in Nos. 8311, 8312, 8313, and 8314. With him on the briefs were Robert E. May, Francis H. Caskin, and May, Shannon & Morley, Washington, D. C.,
Morton L. Simons, Washington, D. C., for petitioners in Nos. 8311, 8312, 8313, and 8314. With him on the briefs were:
William T. Coleman, Jr., and Robert W. Maris, Philadelphia, Pa., for United Gas Improvement Co., petitioner in No. 8311;
Samuel Graff Miller and Donald Blanken, Philadelphia, Pa., for Philadelphia Electric Co., petitioner in No. 8311;
Edwin F. Russell, Harry G. Hill, Jr., and Barbara M. Suchow, Brooklyn, N. Y., for Brooklyn Union Gas Co., petitioner in No. 8312;
Kent H. Brown, Albany, N. Y., for Public Service Commission of State of New York, petitioner in No. 8313;
Edward M. Barrett and Bertram D. Moll, Mineóla, N. Y., for Long Island Lighting Co., petitioner in No. 8314.
Cyril S. Wofsy, Washington, D. C., for respondent. With him on the brief were Richard A. Solomon, General Counsel, Howard E. Wahrenbrock, Sol., and Joel Yohalem, Attorney, Federal Power Commission.
Before BREITEN STEIN, HILL and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
These petitions seek review of Opinion No. 422 of the Federal Power Commission granting permanent certificates of public convenience and necessity under § 7 of the Natural Gas Act for sales of natural gas produced in Texas Railroad District No. 4 to various interstate pipeline companies. Nine of the petitions are by independent natural gas producers, three are by distributing companies selling gas in the Atlantic Seaboard area, and one is by the Public Service Commission of the State of New York. All of the petitions are brought under § 19(b) of the Act.
The Commission fixed the rate at 16 cents per Mcf. The producers say that the rate is too low and the distributors say that it is too high. The parties are also at odds on the Commission treatment of the refund question. We affirm the 16-cent rate and hold that refunds of collections made in excess of that rate under temporary certificates containing no express refund condition may not be ordered.
The first petition for review was filed in the Tenth Circuit by Sunray DX Oil Company and other producers. After procedural skirmishes, petitions for review of Opinion No. 422 pending in other circuits were transferred to the Tenth Circuit pursuant to 28 U.S.C. § 2112(a). The producers filed motions for leave to adduce additional evidence. These motions were deferred to the hearing of the petitions on the merits. The proceedings were held in abeyance for a time in anticipation of the decision in United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284.
An understanding of the issues will be helped by a brief recitation of the Commission actions and the court decisions which make up the background. The decision in Atlantic Refining Co. v. Public Service Commission of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312, (CATCO) directed the Commission in certificate cases to keep initial prices in line. Thereafter, on September 28, 1960, the Commission promulgated its Statement of General Policy No. 61-1. This was issued concurrently with Opinion No. 338 in Phillips Petroleum Company. The Policy Statement established 23 rate areas, including District No. 4 involved herein, and with unimportant exceptions announced maximum rates for each area. In Phillips, the Commission held that the regulation of independent producers under the Act could be accomplished more appropriately by the establishment of area rates than by the establishment of producer rates on individual cost-of-service findings. The Policy Statement established a guideline initial rate for District No. 4 of 18 cents per Mcf.
On August 30, 1962, the Commission issued Opinion No. 362 in Skelly Oil Co., 28 F.P.C 401. That proceeding involved applications under § 7 for permanent certificates covering sales of gas produced in District No. 4. Therein the Commission disposed of all applications under contracts executed prior to September 28, 1960, the date of the Policy Statement, by the imposition of a 15-cent initial price condition and deferred decision on sales under four contracts bearing a later date. On the same day as the Skelly decision, the Commission promulgated its Fifth Amendment to the Statement of General Policy No. 61 — 1, 28 FPC 441, reducing the guideline initial rate in District No. 4 from 18 cents to 16 cents effective the same date. The four applications which had been severed from Skelly were then consolidated with a number of applications covering District No. 4 sales under contracts made between September 30, 1960, the date of the Policy Statement, and August 30, 1962, the date of the Skelly decision and the Fifth Amendment. The consolidated proceedings went forward under the style Amerada Petroleum Corporation, et al., Docket Nos. C162 etc.
In its order for the consolidated hearing the Commission stated:
“In such a hearing all of the ap-: plieants will have an opportunity to show whether the appropriate price at which they should be permanently certificated should be limited to the 15-cent per MCF price which we found to be the in-line price as of September 28, 1960, the 16-cent price which is being adopted as the future area ceiling price for this area, or the 18-eent per Mcf price established on September 28, 1960.”
The applications covered initial contract-based rates ranging from 15.9 cents to 19.8 cents. During the pend-ency of their applications for permanent certificates, numerous producers requested and received temporary authorizations under § 7(c) of the Act and § 157.28 of the Commission regulations thereunder. These were issued ex parte and without notice or hearing. Many of the temporary certificates did not contain an express refund condition.
The Amerada proceedings before the Examiner went forward contemporaneously with the judicial review of the Skelly decision, Opinion No. 362. In Amerada the producers offered, and the Examiner declined to receive, testimony and exhibits covering economic and financial requirements. Texaco Inc. sought to obtain the disclosure and production of Commission records pertaining to the establishment of the guideline initial prices in the Policy Statement and the Fifth Amendment. This was denied. Review of the Commission actions upholding the Examiner on these two evidentiary issues was sought and denied in Texaco Inc. v. Federal Power Commission, 117 U.S.App.D.C. 268, 329 F.2d 223, certiorari denied 375 U.S. 941, 84 S.Ct. 346, 11 L.Ed.2d 272, on the ground that under § 19 the petitions for review were premature.
A Commission staff economist presented, and the Examiner received in evidence, Exhibit 16. This exhibit is a summary of price and other information for all District No. 4 contracts dated 1955 or later, filed as rate schedules with the Commission, and calling for a price of at least 14 cents.
The Examiner’s decision, issued July 23, 1963, recommended the grant of permanent certificates of public convenience and necessity to all producer applicants on specified conditions, two of which are pertinent here. The initial price was to be no greater than 15 cents per Mcf and no refunds were required of producers selling gas under temporary authorizations which did not contain any specific refund condition. Both the producers and the distributors filed exceptions to the Examiner’s decision.
While the matter was pending before the Commission, the District of Columbia Circuit decided the Skelly case. That decision affirmed the 15 cent in-line price established by Opinion No. 362 for District No. 4 sales under contracts made before September 28, 1960, and reversed the Commission holding that refunds could not be required when the temporary authorization contained no express refund condition.
By its Opinion No. 422, here under review, the Commission upset the Examiner on both the price and refund issues. It fixed the in-line price at 16 cents per Mcf and deferred the question of refunds under contracts having no express refund conditions.
With this background we first consider the rejection of the proffered evidence. Several producers jointly tendered testimony and exhibits covering economic and geologic factors pertinent to the area. The showing was that exploratory and drilling costs have substantially increased between the time when the majority of contracts in Skelly had been executed and the execution of the contracts with the prices here in dispute; that the public interest required further exploratory and drilling efforts in the area because of increasing demand and lessening supply; and that the public convenience and necessity required initial contract prices up to and including 18 cents per Mcf. The Commission upheld the Examiner’s decision to exclude the evidence because it was not relevant to a § 7 proceeding where the test is public convenience and necessity rather than the determination of a just and reasonable rate.
CATCO holds that the Act does not require a determination of just and reasonable rates in a § 7 proceeding; that if a proposed price is “out of line” the Commission may impose conditions; and that to protect the public interest the Commission acts in a § 7 proceeding “to hold the line awaiting adjudication of a just and reasonable rate.” CATCO does not define the “line” and does not fix standards by which a determination may be made of whether a price is “in line” or “out of line.”
In Callery the Supreme Court said that under § 7 “adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels.” With reference to cost and economic trend evidence, the Court mentioned the experience of the Commission, said that the Commission “properly and constructively exercised its discretion in declining to consider this large quantity of evidence,” and concluded that the rejection of such evidence is “an appropriate step” in the streamlining of Commission procedures.
The producers seek to avoid the impact of Callery by the assertion that the proffered evidence was a streamlined presentation which could not cause any crippling delay. In our opinion, the admissibility of such evidence does not depend on any quantitative test. Relevance is determined by the substance of the offer. Although we agree with the producers that neither CATCO nor Callery establishes any specific evidentiary standards, the point is that the just and reasonable rate standards of §§ 4 and 5 do not apply to § 7 where the test is public convenience and necessity. We do not say that economic and geologic evidence is never admissible in a § 7 proceeding. This may depend on varying circumstances. All we say is that in the posture of this case the Commission did not abuse its discretion by rejecting the evidence.
By request to the Examiner and by application for a subpoena duces tecum and ad testificandum, Texaco Inc. sought to obtain the disclosure of the data and materials underlying and supporting the price levels for initial sales in District No. 4 as announced by the Commission in its Policy Statement and in the Fifth Amendment thereto. In sustaining the Examiner’s denial, the Commission pointed out that the burden is on a producer-applicant to prove that a certificate is required by the public convenience and necessity; that the effect of the Texaco motion is to place on the Commission the burden of justifying the price expressed in the Policy Statement; and that Texaco had demonstrated no reason for the production of the documents and issuance of a subpoena as requested. Consideration of this problem is entwined with the intent and effect of the Policy Statement.
We have noted that the Policy Statement fixed an 18-cent price, that Skelly, Opinion No. 362, fixed a 15-cent price for the period prior to the issuance of the Policy Statement, that the Fifth Amendment to the Policy Statement fixed a 16-cent price, and that we are here concerned with contracts executed between the date of the Policy Statement and the date of the Fifth Amendment. The producers argue that the Policy Statement established an 18 cent in-line rate. The distributors contend that Skelly established a 15 cent in-line rate. None of the petitioners are happy with the 16-cent rate which the Commission decreed.
The basic claim of the producers is that the Policy Statement set in-line prices on which they were entitled to rely. In our view this is a misconception of the Commission action. The Policy Statement is just what it purports to be — an ex parte statement issued without hearing by an agency to advise the public properly of the manner in which the agency proposes to exercise a discretionary power. Reference is made therein to “price standards” and “price levels.” The purpose is that of “guidance and initial action by the Commission.” The effect is that, “in the absence of compelling evidence calling for other action,” producer applications for certificates proposing higher rates than those listed will be either denied or conditioned. The result is that the Policy Statement plays a “significant role” in arresting the upward trend of producer prices.
The announcement of a guide to price levels or price standads is not the establishment of an in-line price. That is accomplished after notice and hearing in an appropriate proceeding — not in a policy declaration. No doubt designedly, the Commission did not specify the formula which it used in arriving at the guideline rates. Its failure to do so may put a burden on producers and distributors alike in any attempt to show that a guideline price should or should not be adopted as an in-line price. The presence of such burden neither requires nor permits a party to go back of the Policy Statement in search of its justification. That is the administrative concern of the Commission. It follows that the request and application of Texaco for the underlying data and materials were properly denied.
The Commission may not rigidly and arbitrarily impose a guideline price as an in-line price. The Policy Statement recognizes that compelling evidence may call for action other than granting a certificate at the guideline price. The point is that, in the context of the proceedings before us, the establishment in 1960 of the 18-cent guideline cannot be ignored by the Commission in arriving at the in-line price. Its effect had to be, and was, evaluated by the Commission.
The other extreme of the dispute is the position of the distributors who say that the 15-cent price established in Skelly, Opinion No. 362, for contracts executed prior to the date of the Policy Statement is the in-line rate which is presumed to continue until a just and reasonable rate has been determined in an area rate proceeding. We agree with the distributors that the in-line procedure is an interim device and is not intended to be a permanent method of producer regulation. It is a necessary device because of the complex and time-consuming processes incidental to the establishment of a just and reasonable rate. The apparently inevitable time lag between certification and establishment of a just and reasonable rate affects the mutability of an established inline price.
The Commission has recognized that the in-line price must reflect current conditions. The Courts of Appeals have agreed. Further support is found in the Callery decision where the Supreme Court referred to “other contemporaneous certificates” and “prices higher than existing levels.” We concur with the Commission that once the in-line price is established it is presumed to continue not until the just and reasonable rate is determined but until “substantial evidence is presented that it has changed.”
Thus we reach the heart of the Commission’s decision. The question is whether substantial evidence sustains the 16-cent price. All the petitioners say that it does not.
The basis for the Commission’s action is Staff Exhibit No. 16 which lists the provisions of gas sales in District No. 4 “dated 1955 and later with total rates of 14.0^ Mcf and higher as accepted for filing by the Federal Power Commission as of 8-31-62.” The Commission analyzed the figures presented and compared the initial contract prices for the two years here under consideration with those pertinent to the Skelly proceeding where the 15-cent price was fixed for sales contracted before the date of the Policy Statement. It found that in the later period 82% of the gas moving in interstate commerce was at initial contract prices of 16 cents per Mcf and higher, and that the weighted average price for the period was 17.176 cents per Mcf. For the earlier period the weighted average was 16.5 cents. This shows an increase of more than six-tenths of a cent for the later period. The Commission pointed out that the lowest selling price for substantial quantities of gas during the period in question was 16 cents and concluded that the public convenience and necessity required the issuance of the certificates at that price.
The distributors argue that the Commission considered and acted on suspect prices. United Gas Improvement Co. v. Federal Power Commission, 9 Cir., 283 F.2d 817, 824, holds that it is an abuse of discretion for the Commission, in establishing a price line, to rely upon producer prices which are under review in pending court and Commission proceedings. In that case and the decisions of the Courts of Appeals which followed it there were both numerous uncontested contracts available for consideration and certificates which the courts had rejected because of their issuance at excessive price levels.
The Examiner limited his consideration to sales under contracts which were made during the pertinent period and for which permanent certificates had been issued. The Commission found that the effect of this limitation was to arrive at an in-line price on the basis of only 1.39% of the volumes for all sales shown. In the UGI decision of the Ninth Circuit, mentioned above, the court said that the line “may properly be referenced to relevant existing producer prices under which substantial amounts of natural gas move in interstate commerce.”
Thus we have here a situation vastly different from that presented in the cases which have dealt with the suspect price doctrine. Exhibit 16 included the sales under consideration in the very proceedings in which the exhibit was presented. The distributors say that this is an impermissible bootstrap procedure. The producers in turn say that the reason for the small percentage of sales free from attack is the action of the distributors in contesting all sales above the price which is acceptable to the distributors.
■ In the determination of an in-line price, permanent certificates have a greater weight than do either temporary certificates or contract rates under attack. At the same time, when no appreciable volume of gas is moving under permanent certificates, the Commission has nothing upon which to base a decision as to in-lineness unless it turns to the temporaries. In fixing the 15-cent price for District No. 4 sales which preceded the Policy Statement, the Commission in Skelly gave a “limited degree of consideration” to the price range of contracts resulting in temporary certificates although it recognized that they were not “as persuasive” as permanent certificates. The price fixed in Skelly was upheld by the District of Columbia Court of Appeals which commented that the Commission gave “less consideration” to the temporary certificates than it did to the permanents
An in-line price is intended to reflect the price at which substantial volumes of gas are currently contracted for sale in interstate commerce. This determination cannot be made if all current sales are within the “suspect price” doctrine because of objections made to them. Such an application of the doctrine would, as said by the Commission, make the price determination dependent on the “unreviewable fiat” of the objectors. Our conclusion is that in the circumstances of this case the Commission did not abuse its discretion by the consideration given to prices not covered by permanent certificates.
The producers say that the in-line price for permanent certificates should be the highest price at which substantial quantities of gas move in interstate commerce and that here the Commission has fixed the lowest rather than the highest price. The producers rely on the statement in Callery that: “We believe the Commission can properly conclude under § 7 that adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels.” This language does not mean that the public interest is not protected if the sales are approved at less than existing levels.
The distributors point to the decision in Atlantic Refining Co. v. Federal Power Commission, 115 U.S.App.D.C. 26, 316 F.2d 677, 679, which says that “if the Commission is to err in setting an initial rate, it should err on the low side” because of the right of a producer to file immediately for a rate increase under § 4. From this premise they argue that the 15-cent price of Skelly should have been adopted. The provisions of § 4, although they may not be disregarded, are not a complete answer. Rate increases filed thereunder are subject to suspension. The producers may have the use of the money collected but it is at interest if refunds are ordered and royalty and tax payments have to be made on the total amount collected. If the just and reasonable rate as finally determined is greater than the in-line rate adopted, the producers have no way of recouping their losses. Our view is that the possibility of filings for increased rates under § 4 does not require that the Commission fix the price in a § 7 proceeding at a figure lower than that at which substantial volumes of gas are currently contracted for sale in interstate commerce.
Both producers and distributors attack the 16-cent price on the ground that it results from an improper use of, and reliance on, agency expertise. For over 12 years since the decision in Phillips Petroleum Company v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the Commission has been struggling to regulate the independent natural gas producers under an act which is not well designed for the attainment of that objective. Serious administrative problems have developed. Procedures and methods have changed from time to time. Whether those now in use will receive full judicial approval remains to be seen. In the economic regulation with which the Commission is concerned the experience of the past must be projected into the future. The importance of expertise may not be downgraded. A delicate balance must be maintained between producer and consumer interests if the continued life of the industry is to be assured.
We have noted that an in-line price continues until substantial evidence shows a change. The producers point out that the Commission controls the variables which would result in a change by rejecting evidence both of producers' costs and of initial prices which it considers suspect. The potential for circuity of action does not impress us too much. The cost evidence has been refused because it goes to the just and reasonable rate issue. In a § 7 proceeding the test is public convenience and necessity and evidence relevant thereto should be received. In the applications before us this evidence, in large measure, has taken the form of a showing of contract-determined initial prices. The Commission has given consideration to prices under temporary authorizations and under permanent certificates. Greater weight has been given to the permanent than to the temporary certificates. Some prices have been discounted as too high and some as too low. We believe this is proper. Here, at least, the result reached has not come from the use of a crooked yardstick.
The analysis and use of field prices established by producer-pipeline contracts require expertise. Objections to the use of weighted averages are not well taken. Such averages are necessarily lower than the highest prices paid. At the same time nothing is wrong with the use of weighted averages to compare price levels. Here the Commission has made such comparisons. These are proper as long as the action is not capricious or arbitrary.
It is apparent that in the case at bar the Commission was confronted with a difficult situation. CATCO tells it to hold the line. The Ninth Circuit UGI decision says that the price line is intended to reflect current conditions and that the prices on which it is based must be those under which substantial quantities of gas move in interstate commerce. Various decisions warn against the use of suspect prices. Because of objections to most pertinent certificate applications, the number of permanent certificates available for comparison purposes represents only a meager amount of gas. The Commission took due note of all factors and concluded that the price required by public convenience and necessity is 16 cents. We believe that in so doing the Commission acted reasonably and that “we owe it the same deference to its expertise that courts generally owe to the specialized boards and commissions created by the Congress to deal with complex and difficult problems in the field of economic regulation” We find no abuse of discretion and affirm the 16-cent price.
The path from the morass of in-line prices leads directly to the thicket of refunds. Here again the traveled way is not well marked and we have a three-way disagreement among the parties over the route to be followed.
In the consolidated proceedings before the Commission, 27 of the 35 dockets related to applications in which temporary certificates had been issued without any express refund condition. The Examiner held that on the authority of Opinion No. 362, Skelly, he had no power to order refunds when the temporary certificate did not contain an express refund provision. While the proceedings were pending before the Commission on exceptions, the District of Columbia Circuit reversed the pertinent holding in Opinion No. 362. On the authority of that decision the Commission reversed the Exáminer on the refund issue and held that “the public interest would best be served by deferring for the present the decision whether refunds should be ordered * * *, and if so, the extent of such refunds.” The Commission said that the parties “will be given an opportunity to submit further briefs on the issue of refunds.”
At the outset we are met by the Commission argument that the refund issue is not now reviewable because § 19(b) makes aggrievement a jurisdictional prerequisite to review of Commission orders and here aggrievement is absent because no refunds have been required. In denying the Commission motion to dismiss the Sunray petition we held that Sunray was likely to suffer injury by the determination of the in-line price and that the threat of refunds made it an aggrieved party.
The threat has been followed by action. On July 27, 1966, the Commission issued Opinion No. 501 in the Amerada consolidated dockets which were considered in Opinion No. 422 here under review. Opinion No. 501 says that the producers therein listed “will be ordered to make refunds of all amounts collected in excess of 16 cents per Mcf while operating under temporary certificates” with the exception of certain royalty and tax payments not pertinent here. The producers listed include Sunray and six others who are petitioners in these proceedings. They are required to report their excess collections and hold them subject to the further order of the Commission “directing the disposition of those amounts.”
Opinion No. 422 as implemented by Opinion No. 501 adversely affects Sunray and the other six producers. Although payment itself is not yet required, the producers are told that the excess collections do not belong to them. The only thing which remains to be decided is the question of who gets the money and under what conditions. This is not a case like either Texas Eastern Transmission Corp. v. Federal Power Commission, 5 Cir., 357 F.2d 232, or United Fuel Gas Company v. Federal Power Commission, 4 Cir., 367 F.2d 34. They related to an order directing that refunds generated by a settlement agreement be retained by the producer pending Commission inquiry into whether release of the refunds to the pipelines would be proper. There the obligation to refund was fixed by the settlement. Here the obligation to refund is fixed by a Commission order. A producer has a right to a prompt determination of its liability. We believe that the question of the power of the Commission to order refunds of amounts collected under temporary certificates containing no express refund condition is ripe for determination and that proper judicial administration requires that it be deferred no longer.
Temporary certificates are issued ex parte and without hearing under § 7(c) of the Act in accordance with Commission Regulation § 157.28(c). A party aggrieved by the issuance of such certificate has the right to judicial review. The first attack on the absence of an express refund condition in the temporaries here under consideration came when the distributors, during the pend-ency of the proceedings before the Examiner, moved for the termination of the temporaries or in the alternative for a floorless refund condition. The Commission denied the motion. It declined to impose the refund condition because “we think clearly this would not be a proper action for us to take here.” It further said that such action “would so denature the value of a commission authorization as to place any reliance upon our actions in this area in serious jeopardy” and that “we find it would be contrary to the public interest, as well as inequitable, to condition the temporary certificates” as requested by the distributors. The distributors did not seek review. We do not accept the producers’ view that the unreviewed denial of the motion irrevocably determined the refund issue. The Commission could change its mind. At the same time the reasons given for the action are most compelling and show mature consideration of the problem.
The distributors emphasize the importance of refunds to the protection of the consumer interests. This may be conceded to the extent that refunds are passed down to the ultimate user. These benefits must be weighed against the desirability of the maintenance of an adequate supply of gas. A repricing of the gas, without warning, cannot help but have a severe impact on the operations of the producers. We will not speculate on the effect of such repricing on their exploration and development activities. The benefits derived from such costly activities may or. may not be of greater value, from the public standpoint, than the few dollars recovered by the home consumer. Perhaps he would rather have an assured supply for his expensive appliances than a modest refund. In any event the record does not purport to cover such issues and we turn to the decisions which the parties say control the outcome.
In our opinion the Callery decision does not dispose of the issue presented here. The Supreme Court was
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
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songer_district
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
THE IDEFJORD. BLUMENTHAL IMPORT CORPORATION v. DEN NORSKE AMERIKALINJE A/S.
No. 397.
Circuit Court of Appeals, Second Circuit.
Aug. 9, 1940.
Writ of Certiorari Denied Nov. 25, 1940.
See 61 S.Ct. 175, 85 L.Ed.-.
Martin Detels, of New York City (Big-ham, Englar, Jones & Houston and James N. Senecal, all of New York City, on the brief), for libelant-appellant.
Wharton Poor, of New York City •(Haight, Griffin, Deming & Gardner and James McKown, Jr., all of New York City, on the brief), for claimant-appellee.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
CLARK, Circuit Judge.
This appeal raises the question of liability of a forwarding steamship carrier, under a through bill of lading, for damage by reason of rain and spray to a cargo of wool, owned by libelant and stowed on deck of the steamer. The district court exonerated the carrier on the ground that such on-deck stowage had been agreed to by representatives of the shipper and owner of the goods and was proper under the circumstances. Libelant denies that it as owner ever consented, and rests its basic claim of error in the decision on the ground that a “clean” bill of lading negotiated to innocent purchasers does not permit of such a change from the terms of the original contract of carriage.
In December, 1936, and January, 1937, libelant, a New York importing concern, had purchased 321 bales of wool from one Zariffa, in Cairo, Egypt, by cable exchanges. Terms were C. & F., and libel-ant, immediately on contracting for the purchase, opened a letter of credit in favor of Zariffa at London banks through American banking corporations. The banks were instructed to honor Zariffa’s drafts with bills of lading attached.
At Alexandria, Egypt, Zariffa, between January 26 and February 19, 1937, delivered the wool to D. C. Pitellos & Co. in five lots for shipment, notifying libelant by telegraph as each delivery was made. Pitellos & Co. issued five similar negotiable bills of lading stating that varying numbers of bales of wool had been shipped in apparent good order at Alexandria for delivery in New York and Philadelphia to libelant’s bankers or their assigns as consignees. Each bill provided for transshipment of the goods at Port Said by a named vessel “or other suitable steamer.” On the face of the bills, after designation of the number of bales of wool and their weight, and the directions for their transshipment at Port Said, there appeared printed in small capitals the words “Subject to All the Terms and Conditions Contained in the Bills of Lading at Present in Use By: Messrs. -.” The blank following the word “Messrs.” was on four of the bills completed with -the typewritten words “The oncarrying line of steamers”; in the fifth case a specific name had been typed in, only to be crossed out and the same phrase as in the other bills added by pen and ink. The bills also contained some twenty-seven numbered and three unnumbered conditions and reservations printed in small type, among which were separate provisions exonerating Pitellos & Co. and the carrier from all liability for delay in forwarding, and other provisions that goods forwarded were subject tó the conditions and exceptions of the forwarding or carrying conveyance. The bills did not, however, contain permission for on-deck carriage.
The goods were freighted below decks from Alexandria to Port Said. At Port Said, in some manner not disclosed by the record, the wool came under the control of Wm. Stapledon & Son, whose letterhead shows them to be agents for several steamship lines, but not including any concern participating in the transaction now before us. Stapledon & Son experienced considerable difficulty in finding a suitable ship for on-carriage to the United States. At length, toward the end of February, Staple-don & Son arranged with the Port Said & Suez Coal Co., agents for the charterers of the Idefjord, to carry'the wool on the Idef-jord, above deck, at shipper’s risk across the Mediterranean, with restowage in the hold at Casablanca. Libelant asserts a complete lack of proof as to whether or not Stapledon & Son were authorized by the shipper, Zariffa, to contract for on-deck carriage; but in the view we take of the case, Zariffa could not give such authority, had he tried to do so, unless he noted that fact on the original bills of lading before presenting them.
The wool was placed on the Idefjord’s deck, and nonnegotiable bills of lading were prepared on February 27, 1937, by the Port Said & Suez Coal Co., stating the terms of carriage and expressly providing for stowage “on deck at shippers’ risk till Casablanca only where goods must be re-stowed in hold.” It does not appear that these bills were ever issued to the shipper, though the previous correspondence and the' master’s receipts were to a similar effect. Before the Idefjord sailed, its captain was presented with, and he accepted, the “captain’s copy” of each of the five original Alexandria bills of lading. By that time four of these original bills, together with sight drafts and other documents of sale and transfer, had been presented by Zariffa to- the London banks, and Zariffa’s drafts had been honored. And, pursuant to the instructions given earlier, the last bill was so honored on March 2, 1937.
When the wool was damaged en route, libelant filed this libel against the Idefjord. The district court held that' Stapledon & Son had possessed apparent authority to bind all parties interested in the wool to a contract for stowage on deck at shipper’s risk. It also ruled that the damage to the wool had been caused solely as a result of its shipment on deck, and that the Idefjord had not been negligent in its stowage or in departing from Port Said loaded slightly above its summer marks. The Idefjord, D. C. S. D. N. Y., 31 F.Supp. 667.
We see no reason to disturb the finding that the damage was due solely to the on-deck carriage, and accept the lower court’s conclusion that the Idefjord and its crew were otherwise free from negligence. The only substantial issue remaining in the case, as we view it, concerns the privilege of the Idefjord to agree with Stapledon & Son for on-deck carriage, in view of the outstanding Alexandria bills of lading.
1. The Idefjord contends that its liability must be measured by its own contract of carriage, as expressed in the nonnegotiable bills of lading which it prepared at Port Said, with the statement “on deck at shippers’ risk” typed thereon. It is argued that the Idefjord could not have been bound by any of the terms or conditions of the original Alexandria through bills, even though the Idefjord’s captain was presented with his copies thereof. We are not disposed to accept this measure of the on-carrying steamer’s responsibility.
The Alexandria through bills of lading were negotiable, and upon their presentation with drafts to the London banks the seller received his money. This was by no means an' unusual or an unreasonable course of business.' The Idefjord, having notice of the existence and terms of these bills, knew, therefore, that commercial drafts were being or might be honored in reliance on the normal conditions of carriage set forth therein. Under these .circumstances we do not believe it was free to arrange carriage of the cargo in substantial disregard of the original agreement. The T. A. Goddard, D. C. S. D. N. Y., 12 F. 174, 182; The Cayo Mambi, 2 Cir., 62 F.2d 791, 792. The authority of Stapledon & Son to vary that agreement was not known to the Idefjord; even if Stapledon & Son had obtained the requisite permission from the seller, the Idefjord was on notice, from the terms of the bills, that the seller or order was not the consignee of the goods and therefore might not and probably did not possess valid authority to bind whosoever might be the holder of the negotiable through bills of lading. Unless a duty on the part of the on-carrying steamer to comply with the through bill be recognized, no protection can be afforded to the banks and merchants who are accustomed to rely upon such arrangements for financing imports. Nor does the imposition of this obligation confront the Idefjord with Hobson’s choice; it was free to reject the cargo if it was unable to carry it as required by the through bills of lading.
Cases which have been cited to us as containing language supporting the opposite view, such as Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156; The Cayo Mambi, supra; Miller v. Harvey, 221 N.Y. 54, 57, 116 N.E. 781, L.R.A.1917F, 559; and Briggs v. Boston & L. R. Co., 6 Allen, Mass., 246, 83 Am.Dec. 626 — to which may be added Aberdeen Grit Co. v. Elierman’s Wilson Line, (Court of Session) [1933] Sess.Cas. 9 — are not opposed in fact. Many of these did not involve variation of the terms of negotiable through bills of lading, and in none of them does it appear that the on-carrying conveyance had notice of the terms of the original through agreement. We read The Cayo Mambi, supra, for example, as sustaining our position. Certain language in The St. Hubert, 3 Cir., 107 F. 727, 732, and in Crossan v. New York & N. E. R. Co., 149 Mass. 196, 198, 21 N.E. 367, 3 L.R.A. 766, 14 Am.St.Rep. 408, taken from its context does lend more support to claimant’s position. Limited to their facts, however, both these holdings are not pertinent to the present aspect of the case. In The St. Hubert, supra, it did not clearly appear whether or not the through bills were negotiable; in any event, certain clauses of the through bills were construed as authorizing the variations later made — a circumstance we refer to at length below. In the Crossan case, again no problem of negotiability was involved, and the on-carrier ran the risk of a lawsuit by the plaintiff if it were to refuse, as a common carrier, to carry the shipment. The Idefjord was in no such danger. It was already loaded above even its summer marks, and no rule of law compelled it to accept further on-deck cargo, even when tendered by the owners thereof. Indeed, the alternative of delay in the forwarding was provided for in the original bills.
2. The Idefjord next contends that the variation it inserted in the contract of carriage was expressly authorized by "the terms of the original Alexandria bills. It was within the contemplation of all parties that the cargo would be transshipped at Port Said, and on-carried to New York by another steamship line. The provision that the forwarding shipment should be subject to the conditions of the bills of lading at present in use by the on-carrying steamers, or some equivalent expression, such as the “regular” bills of lading of the on-carrier, seems not infrequent. It had the effect of incorporating into the original bills of lading whatever terms were to be found in the regular printed form of bill of lading used by the Idefjord, so long as those terms were not inconsistent with the original bills. Bank of California v. International Mercantile Marine Co., 2 Cir., 64 F.2d 97; The Cayo Mambi, supra; The Hibernian, [1907] P. 277 (especially the opinion of Fletcher Moulton, L. J., at 282). Cf. Scrutton on Charterparties and Bills of Lading, 14th Ed. 1939, 84. But this clause would be of no help to the Idefjord, since the provision for on-deck carriage was not part of the Idefjord’s printed form bill of lading, but was typed over the printed form for this particular contract of affreightment. It was in no sense a term of the bill of lading “at present in use by Messrs.-The oncarrying line of steamers.” Even if it were, it could hardly be said to be consistent with the original bills.
Each of the original bills also contained as a part of Clause 7 the provision that “Goods transhipped, overcarried or destined for ports where the ship does call will be forwarded at ship’s expense but subject to the conditions and exceptions of the forwarding conveyance" which was substantially repeated at the end of the bill, as follows: “This Bill of Lading shall be construed and governed by English Law, and shall apply from the time the goods are received for shipment until delivery, but always subject to the conditions and exceptions of the carrying conveyance.’' (Italics added.) This provision must be construed in the light of the earlier provision referring to the regular bills or the bills “at present in use” by the on-carrier. The earlier provision, being filled out for the occasion by typing or handwriting,. would be preferred if there were any inconsistency between them. Pacific Rice Mills v. Westfeldt Bros., 5 Cir., 31 F.2d 979; Deutschle v. Wilson, 8 Cir., 39 F.2d 406; Thomas v. Taggart, 209 U.S. 385, 389, 28 S.Ct. 519, 52 L.Ed. 845, affirming In re Jacob Berry & Co., 2 Cir., 149 F. 176. In any event, this added provision did not mean that the second carrier might propose, and the initial carrier might agree to, any sort of harsh, arbitrary conditions of carriage. We may assume it did mean that on-carriage need not accord strictly with the terms of the original bills. Aberdeen Grit Co. v. Ellerman’s Wilson Line, supra. But the most this clause can mean is that by the express provisions of the Alexandria documents, the initial carrier or its representative and the Idefjord might arrange reasonable terms for carriage of the goods, in line with the latter’s ordinary forms of contract and not fundamentally inconsistent with the original bills.
The case therefore turns on whether or not a contract for on-deck carriage at shippers’ risk was such a reasonable one under the circumstances. We do not think it was. The very essence of the' C. & F. contract was payment on presentation of a clean bill of lading. As stated above, the Idefjord was chargeable not only with notice of the existence of outstanding clean negotiable bills, but also with knowledge that such bills might be transferred to innocent parties in the regular course of trade. It is settled beyond dispute that a clean bill of lading negatives on-deck carriage of goods such as wool. The Delaware, 14 Wall. 579, 604, 20 L.Ed. 779; St. Johns N. F. Shipping Corp. v. S. A. Companhia Geral Commercial, 263 U.S. 119, 124, 44 S.Ct. 30, 68 L.Ed. 201, affirming The St. Johns N. F., 2 Cir., 280 F. 553; The Gran Canaria, D. C. S. D. N. Y., 16 F. 868, 872. It has even been held that a captain cannot issue a clean bill if the goods are stowed above deck. The Kirkhill, 4 Cir., 99 F. 575, 578. Had the on-deck provision been noted on the original bills, they might in all probability never have been honored by the London banks. By carrying the goods above deck, knowing that fact was not marked on the original bills, the Idefjord allowed a fraud to be worked upon any one who might innocently pay value for the bills. The Kirkhill, supra. The contract for on-deck stowage, therefore, cannot be deemed consistent with the original bills, or reasonably within the contemplation of the parties. It may have been true that the alternative of allowing the goods to remain in Port Said until below-deck stowage became available was fraught with danger to the value of the cargo; but such a course was authorized by the provisions in the original bills waiving liability for delay in transshipment. On-deck carriage was not.
The view we have taken does not conflict with The St. Hubert, supra, Reid v. Fargo, supra, or cases like Crossan v. New York & N. E. R. Co., supra, and Aberdeen Grit Co. v. Ellernian’s Wilson Line, supra. The reasonableness oí the variation depends on the circumstances of the particular case, and upon whether or not a clean negotiable document of title is outstanding. The variations in the decisions above cited were either of the sort ordinarily to be expected in different bills of lading or eminently reasonable under the situation confronting the on-carrying conveyance. In none of those cases was the variation one which could work harm upon an innocent third party.
3. We find necessary only brief comment on the other contentions advanced. The supposed proof that the buyer ratified the arrangement for on-deck stowage is not convincing. Knowledge was not brought home to the libelant before the ship sailed; only the shipper knew, and he appears to have done nothing except to write libelant a letter delivered in America long after the damage was done. But after all, he had stepped out of the picture and was perhaps well advised in so doing. That libelant affected insurance when it received the shipper’s letter on March 17, 1937, and did not seek to disaffirm its purchase, can have no bearing here; the bills had already been presented, and libelant’s responsibility to the holders fixed. Cf. Hansson v. Hamel & Horley, [1922] 2 A. C. 36, 46; Harper v. Hochstim, 2 Cir., 278 F. 102, 103, 20 A.L.R. 1232. And though it is claimed that the ship’s liability in a suit in rem is measured by the contract of her master, and not by an antecedent agreement with third persons, not the agents of the ship, yet the Idefjord, by accepting the cargo for carriage with knowledge of the clean through bills, made the issuer of those bills its agent. It could not then accept the goods under its own conditions,' and it was bound in rem for right delivery. The Sprott, D. C. S. D. N. Y., 70 F. 327; The Poznan, D. C. S. D. N. Y., 276 F. 418.
The decree is reversed, with directions to the district court to enter a decree in favor of libelant, and to proceed to assess the damages, by reference or otherwise as it shall determine.
Before he resigned Judge PATTERSON heard the argument of this appeal, and voted at the conference to reverse the judgment. Since his resignation he has read this opinion and authorizes us to say that it accords with his views.
Here the buyer’s bank or order, rather than the seller or order, was the named consignee. The only effect of this variation, so far as concerns ns here, was to take the seller out of the picture at once, as the carriers would then see at a glance.
Moreover, the decision of the second carrier in the Orossan. case was eminently reasonable under the circumstances. 'The only variation was in the amount of the freight to be charged; and had the shipment of horses been refused, the cost of their upkeep would probably have exceeded the amount of the. disputed freight charge. The reasonableness of the variation imposed by the Idefjord — on-deck carriage — is discussed below.
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_appel1_7_5
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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).
Bryan W. NICKERSON, Jr., Appellant, v. Josef KUTSCHERA, A. G. Birkenruth, the Tidewater Oil Company.
No. 16651.
United States Court of Appeals Third Circuit.
Argued Dec. 21, 1967.
Decided March 6, 1968.
Bryan W. Nickerson, Jr., pro se.
William J. Wier, Jr., Connolly, Bove & Lodge, Wilmington, Del. (John D. Fair-child, Richard R. Wier, Jr., on the brief), for appellee, A. G. Birkenruth.
Before BIGGS, MeLAUGHLIN and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
The appellant, Nickerson asks this court to reverse the dismissal with prejudice entered by the District Court of his patent infringement suit. Nickerson holds Reissue Patent No. 24,518, a patent relating to a white sidewall attachment for vehicle tires. Nickerson instituted a previous infringement action against the Bearfoot Sole Co. (Bearfoot case). The unreported decision of the District Court in that case, holding the above patent valid and infringed, was reversed by the Court of Appeals for the Sixth Circuit in a lengthy and exhaustive opinion holding the patent invalid for want of invention. Approximately two years after the Bearfoot decision, Nickerson sued again for infringement of this same patent, bringing his action in the District Court for Delaware against Pep Boys— Manny, Moe & Jack (Pep Boys case). The District Court entered summary judgment for the defendants, on the grounds that the Bearfoot case was res judicata or collaterally estopped Nicker-son from relitigating the validity of his patent, albeit against different defendants. Nickerson appealed to this court, No. 15757. Before argument, however, Pep Boys was settled and by agreement dismissed without prejudice. Our strong policy of encouraging such amicable settlement of controversies requires us to disregard entirely the Pep Boys case except to the extent, noted below, that the present parties have agreed that the record in the Pep Boys case is part of the record in this case.
Nickerson then brought a third infringement suit in the District Court for Delaware against the present appel-lees. Appellee, Birkenruth, joined by the other appellees, moved to dismiss the complaint with prejudice. The District Court granted the motion for the reasons stated in the earlier opinion in Pep Boys pursuant to an agreement among all parties that, “for reasons of appeal, the parties accept the * * * {Pep Boys] opinion.”
At the outset, the use we should make of the Pep Boys decision must be considered in some detail. An important controversy exists over whether Mr. Nickerson had more evidence to offer in the present case than was offered in the original Bearfoot litigation. The judge below in his Pep Boys opinion found that, “Plaintiff has not suggested that he has additional evidence to present to this Court if he should go to trial.” On this basis, a motion for summary judgment was granted. The order appealed from in the case now before the court, which incorporates the Pep Boys opinion by reference, grants a motion to “dismiss with prejudice” on the grounds of collateral estoppel under the doctrine of res judicata. The appellees argue that such a motion includes a factual determination on the basis of the record (see F.R.Civ.P. 12(b) & (c)) similar to that involved in summary judgment, and that, in agreeing to use of the Pep Boys opinion, Nickerson has agreed that, in this case too, he has no new evidence to present.
Although the record is devoid of any specific suggestion that Nickerson in fact has more evidence, he maintained at oral argument that he does have new material on the “state of the prior art.” In addition he insists that his agreement to accept “the opinion” for purposes of appeal was prefaced with a statement that he accepted the “conclusions of law” in the Pep Boys opinion. As the judge suggested in the discussion in open court of one aspect of the order entered in this case, the agreed upon Rule 54(b) order
“would simply give Mr. Nickerson an opportunity to get before the Court of Appeals a doctrine which I have sponsored, as to the soundness of which, from the standpoint of precedent at least, there is some question which I recognize and he recognizes.”
In light of the above, and since we are faced with a dismissal without trial or hearing where the plaintiff should receive the benefit of any doubt, we assume for purposes of this appeal that Nickerson does have new evidence to offer in the present case, which evidence was not present in the Bearfoot litigation. With this exception, the decision in Pep Boys is regarded as the opinion below.
The District Court held that the Bearfoot litigation barred Nickerson by collateral estoppel under the doctrine of res judicata from relitigating the validity of his patent in another circuit. In so ruling, the judge found encouragement in our decision in Bruszewski v. United States, 181 F.2d 419 (3d Cir.) cert. denied 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950), that the “doctrine of mutuality” was not properly a requirement of res judicata. Under this approach,, once a patent holder has his full day in court and suffers an adverse decision on the merits, he is estopped in a subsequent attempt to prove the validity of his patent even though the defendant selected is not in “privity” with the initial defendant.
In the field of patent litigation, however, regardless of the rule on mutuality in other fields, the insistence on mutuality has been consistently strong. For a defendant successfully to raise the defense of res judicata in a patent case, “mutuality” requires that he or his privy have been parties in the prior litigation. The broad language in Triplett v. Lowell, 297 U.S. 638, 642-644, 56 S.Ct. 645, 80 L.Ed. 949 (1936) would seem to require us to hold that a prior judgment of invalidity in another circuit is no bar to a suit against different defendants in this circuit for infringement, except on the grounds of comity. While it does appear that the court below may well be correct in concluding that Triplett v. Lowell was either wrongly decided or should no longer be given its customary broad reading, we do not feel that this is the proper case or the proper time for this circuit to make such a holding.
In so deciding we are not unmindful of, and do not wish to change, our previous position in Bruszewski v. United States, supra, characterized as “the leading federal decision” in eroding the doctrine of mutuality, Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944, 954 (2d Cir. 1964). We also find commendable the scholarly approach of a District Court which analyzes carefully and fairly the relevant policy considerations in applying a new and useful legal rule. Nonetheless, even though we may agree that a strict requirement of mutuality should not be continued in the field of patent litigation, two considerations prompt us to reverse the lower court in this particular case.
The general rules of res judicata prevent relitigation not only of matters actually raised and decided in a prior patent validity suit, but the bar also applies to matters or arguments which might have been raised in support of the claimed validity and infringement but were omitted. An exception to this rule is that the bar will not prevent the second litigation when the new suit proceeds on a new cause of action. Since we do not know the nature of Nickerson’s “additional evidence,” we are unable to judge whether it shows that an entirely different factual basis supports the patent’s validity or there exists a new “cause of action.” It thus can not clearly be said on this record that Nickerson has fairly had his “day in court” in the Bearfoot litigation. In any event such a determination must first be made by the district court.
In addition, we note that, as the result of a recommendation of a Presidential Commission, “The Patent Reform Act of 1967” was introduced in both the House of Representatives and the Senate on February 21,1967. One new section, proposed 35 U.S.C. § 294, provides in subsection (a) that a final adjudication holding a patent invalid and from which no appeal has been taken, shall constitute an estoppel against the patentee in any subsequent action. Other bills have also been introduced opposing the bills of February 21, 1967, and the problem of judicial review remains to be argued. Since it is quite clear there is a substantial chance of Congressional action in the very near future, our affirmance of a new patent litigation estoppel rule in this case would be ill-timed. But in otherwise indicating our general approval of the opinion below we do more than endorse careful and enlightened decisions by the District Courts in our Circuit, we also affirm the general position of this court in Bruszewski v. United States, supra, that a strict rule of mutuality no longer has a proper place in the doctrine of res judicata.
For the above reasons, the March 9, 1967 judgment of the District Court will be reversed, and the case remanded for disposition in accordance with this opinion.
. Nickerson v. Bearfoot Sole Company, 311 F.2d 858 (6th Cir.), cert. den. 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50, rehearing den., 375 U.S. 949, 84 S.Ct. 343, 11 L.Ed. 2d 279 (1963).
. Nickerson v. Pep Boys — Manny, Moe & Jack, 247 F.Supp. 221 (D.Del.1965). In Pep Boys and the present ease Nickerson has appeared pro se.
. Document 19.
. 247 F.Supp. at 224.
. Document 31; transcript of 3/3/67 argument, pp. 6-7.
. The scholarly decision also reflected careful attention to non-federal cases and responsible academic opinion on the mutuality requirement. 247 F.Supp. at 222 n. 1.
. This rule is not absolute and the trial judge discussed at least one exception he could hypothesize. 247 F.Supp. at 224.
. See e.g., Technograph Printed Circuits, Ltd. v. United States, 372 F.2d 969, 178 Ct.Cl. 543 (1967) and authorities there cited.
. Because of our disposition we do not reach the problem of whether language in Standard Brands v. National Grain Yeast Corp., 101 F.2d 814, 816 (3d Cir. 1939); or Urquart v. Commissioner of Internal Revenue, 215 F.2d 17, 20 (3d Cir. 1954) must be overruled and this case argued before the court en banc.
. Agrashell v. Bernard Sirotta Company, No. 63-C-206 (E.D.N.Y. June 3, 1966), indicates that the Second Circuit may share the point of view of the opinion below, although the previous determination was that Agrashell was not “sole owner” — perhaps making it a title case, not a validity-infringement case.
. See e.g., 1B Moore, Federal Practice, IT 10.410 [1] (2d ed.1965).
. Ibid., at p. 1154, nn. 18, 19. See e.g., Gedeon v. State Farm Mutual Automobile Insurance Co., 342 F.2d 15, 17 (3d Cir. 1965).
. Cf., Smith v. Pittsburgh Gage and Supply Company, 388 F.2d 983 (3d Cir. Jan. 26, 1968).
. E.g., Ripple Sole Corp. v. Thrifty Drug Store Co., Inc., 133 U.S.P.Q. 135 (S.D. Calif. 1962).
. S. 1042 introduced Feb. 21, 1967 by Senator McClellan; H.R. 5924 introduced Feb. 21, 1967 by Rep. Kastenmeier.
. Section 294, S. 1042. See General Tire & Rubber Co. v. Isocyanate Products, Inc., 270 F.Supp. 868, 869, n. 3 (D.Del. 1967).
. S. 2597 introduced October 30, 1967 by Senator Dirksen; H.R. 13951 introduced Nov. 9, 1967 by Rep. Poff. See for example the objections in Blaustein, The Presidential Commission and the Return to the Patent Act of 1793, 53 A.B.A.J. 911 (1967). The concept of “in rem invalidity” in the two February 1967 bills has been disapproved by the American Patent Law Association, the Patent Section of the American Bar Association and the National Council of Patent Law Associations.
. N.T. Times, Section 3, p. 14, col. 3, Jan. 28, 1968.
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:
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songer_r_subst
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Carl B. OGLE, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent.
No. 12772.
United States Court of Appeals Sixth Circuit.
Oct. 5, 1956.
Karl D. Saulpaw, Jr., and William C. Wilson, of Ambrose & Wilson, Knoxville, Tenn., for petitioner.
Myles F. Gibbons, Gen. Counsel, Railroad Retirement Bd., Chicago, 111., David B. Schreiber, Assoc. Gen. Counsel, Chicago, 111., Paul M. Johnson and Charles F. McLaughlin, Chicago, III., for respondent.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
PER CURIAM.
Petitioner, Carl B. Ogle, 53 years of age and with less than twenty years of service, filed an application for an annuity under Section 2(a) (5) of the Railroad Retirement Act of 1937 as amended, 45 U.S.C.A. § 228b(a) (5), which provides for an annuity to such applicants “whose permanent physical or mental condition is such that they are unable to engage in any regular employment.” His claim was based upon permanent disability due to the amputation of his leg, which was service connected, the condition of his heart, and prostate gland.
Following adverse rulings on the claim by the Bureau of Retirement Claims and the Appeals Council, the Railroad Retirement Board found that petitioner’s permanent physical and mental condition “was not shown to be such that he is unable to engage in any regular employment within the meaning of Section 2(a) (5) of the Act” and denied the claim. This review followed. 45 U.S. C.A. §§ 228k, 355(f).
The Court is of the opinion that the findings of the Board are supported by evidence and in the absence of fraud are conclusive. Lane v. Railroad Retirement Board, 6 Cir., 185 F.2d 819; United States v. Mayfield, 10 Cir., 64 F.2d 214; Berry v. United States, 2 Cir., 111 F.2d 615, 617.
The Order of the Board is affirmed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_method
|
I
|
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.
CONLON v. ADAMSKI et al.
No. 6300.
United States Court of Appeals for the District of Columbia.
Argued March 6, 1935.
Decided April 15, 1935.
James B. Archer and Warren E. Miller, both of Washington, D. C., for appellant.
Leslie C. Garnett, John J. Wilson, John M. George, David Wiener, and James T. Brady, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellant James Conlon and appellee Roman Adamski on September 11, 1933, entered into a contract in writing whereby appellee employed appellant as attorney to bring a mandamus proceeding in the Supreme Court of the District of Columbia to enforce the payment of a claim alleged to be due him upon a war risk insurance policy for the sum of $8,740. According to the contract, out of this claim appellant was to be paid for his services the sum of $2,500.
A petition for mandamus was filed in the Supreme Court of the District of Columbia, and in answer thereto respondent, appellee Hines, admitted that the amount claimed was due Adamski and payment would be made in due course. Whereupon Adamski notified appellant that he would make application for the check for the full amount of the claim and take the funds and go to Europe. Conlon then filed a bill for injunctive relief and the appointment of a receiver, praying that he be decreed to have an equitable lien upon the check, draft, or award, for the settlement of his claim and for general relief. Adamski, through his attorney, moved to dismiss the bill of complaint, and from an order sustaining the motion this appeal was taken.
Appellant in his bill alleges, among other things: “That the said Frank T. Hines, Administrator of Veterans Affairs, has answered the petition for writ of mandamus and return to the rule to show cause, admitting in substance the facts contained in the petition, and stating ‘that the respondent will in due course award and pay to the petitioner the installments of insurance so found due and payable.’ Plaintiff avers that the services rendered by him as attorney in the mandamus proceedings resulted in the promised payment by the Administrator of Veterans Affairs of the $8,740.00 plus $57.50 per month for each month since March 1932 to the defendant, Adamski.”
It thus appears from the averments of the bill that the most that can be deduced from the answer of Hines is an anticipated allowance of a claim against the government, hence plaintiff’s contract for attorney’s fees amounts in effect to an assignment of a portion of a claim alleged to be pending against the government. Such an assignment is absolutely void under section 3477, Rev. Stats. (31 USCA § 203), which provides as follows: “All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share, thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgements of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgement, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.”
The contract here in question is a futile attempt to convey or assign an interest -in a pending claim against the United States, and it complies with none of the requirements of the statute. It is neither witnessed nor acknowledged as therein required, nor does it purport to apply to a claim upon which a warrant has already been issued. But it is claimed that this statute is not applicable to the present case, and that the contract is merely one for an attorney’s fee in a proceeding to enforce the issuance of a warrant for the payment of the claim in compliance with an alleged finding already made by the Director of Insurance, Veterans’ Administration. The contract clearly amounts to an attempted assignment of a portion of an obligation due from the United States to appellee Adamski, but not yet reduced to payment by the issuance of a warrant.
Assuming, however, though by no means conceding, that section 3477, R. S., supra, is inapplicable to the present case, appellant’s contention would not be improved, since he comes in conflict with the provisions of section 551, title 38, U. S. C. (38 USCA § 551), which makes it a criminal offense under any circumstances “to solicit, contract for, charge, or receive, any fee or compensation,” in excess of 10 per centum of the amount recovered in such a proceeding.
But it is contended that by section 17 of the Economy Act of 1933, 48 Stat. 8 (38 USCA §§ 717, 718), repealing all laws granting or pertaining to yearly renewable term insurance, the prohibitive provisions of section 551 were repealed, and that such repeal continues, notwithstanding the decision of the Supreme Court in Lynch v. United States, 292 U. S. 571, 54 S. Ct. 840, 842, 78 L. Ed. 1434, wherein section 17, supra, was in part held unconstitutional; and that inasmuch as section 551 has not been re-enacted, the prohibitive provisions therein contained, limiting attorney’s fees, are repealed and no longer in force.
With this contention we cannot agree. Section 17, among other things, provides: “All public laws granting medical or hospital treatment, domiciliary care, compensation and other allowances, pension, disability allowance, or retirement pay to veterans and the dependents of veterans of the Spanish-American War, including the Boxer Rebellion and the Philippine Insurrection, and the World War, or to former members of the military or naval service for injury or disease incurred or aggravated in the line of duty in the military or naval service (except so far as they relate to persons who served prior to the Spanish-American War and to the dependents of such persons, and the retirement of officers and enlisted men of the Regular Army, Navy, Marine Corps, or Coast Guard) are hereby repealed, and all laws granting or pertaining to yearly renewable term insurance are hereby repealed.” 38 USCA § 717.
The court in its decision differentiated between those portions of the foregoing statute denominated as “public laws,” relating to benevolent purposes such as pensions, compensation allowances, hospital, and other privileges, and laws pertaining to yearly “renewable term insurance,” holding the act constitutional as to the former and unconstitutional as to the latter. Distinguishing between war risk insurance policies and mere pensions or gratuities accorded by the government, the court said: “War risk insurance, while resembling in benevolent purpose pensions, compensation allowances, hospital and other privileges accorded to former members of the Army and Navy or their dependents, differs from them fundamentally in . legal incidents. Pensions, compensation allowances, and privileges-are gratuities. They involve no agreement of parties; and the grant of them creates-no vested right. The benefits conferred by gratuities may be redistributed or withdrawn at any time in the discretion of Congress. United States v. Teller, 107 U. S. 64, 68, 2 S. Ct. 39, 27 L. Ed. 352; Frisbie v. United States, 157 U. S. 160, 166, 15 S. Ct. 586, 39 L. Ed. 657; United States v. Cook, 257 U. S. 525, 527, 42 S. Ct. 200, 66 L. Ed. 350. On the other hand, war risk policies, being contracts, are property and create vested rights. The terms o£ these contracts are to be found in. part in the policy, in part in the statutes under which they are issued and the regulations promulgated thereunder.”
The court, in holding the provisions of section 17 of the Economy Act, repealing all laws granting or pertaining to yearly renewable term insurance unconstitutional, left section 551 as it found it. The elementary rule of statutory construction is without exception that a void act cannot operate to repeal a valid existing statute, and the law remains in full force and operation as if the repeal had never been attempted. Frost v. Corporation Commission of Oklahoma et al., 278 U. S. 515, 526, 527, 49 S. Ct. 235, 73 L. Ed. 483.
The decree is affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
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